1.3 The contractual language is German.
1.4 Some clauses only apply to you if you are a consumer according to Section 13 German Civil Code (hereafter “BGB”) or entrepreneur according to Section 14 BGB. You will be deemed to be a consumer if you use the software for purposes neither mainly associated with your commercial activities nor mainly associated with your self-employment. An entrepreneur is a natural person, legal entity or partnership, which or who acts within their commercial activities or their self-employment when concluding this contract. Smart Reporting expressly makes clear any limitation of applicability of the respective Section.
2.1 We offer you access to the software through the Website. The software is a browserbased software for radiological diagnosis (Software as a Service, SaaS). Physicians that comply with the necessary legal requirements to perform X-ray, magnetic resonance imaging, computer tomography, mammography, ultrasonic or other examinations of persons (hereafter “radiologists”), and operators of hospitals and radiology clinics (hereafter together “users”) may use the Software to issue radiological reports (hereafter “reports”) or to have such reports issued or partly issued. Smart Reporting itself does not issue reports and does not offer them.
2.2 Smart Reporting offers the software in a basic version and in a PROFESSIONAL version.
2.2.1 As a user of the basic version you are granted a personal account on the platform (hereafter “user account”) after registration. By means of the user account you have access to a limited amount of templates that support diagnostic radiological reporting (hereafter “smart templates”) as well as modules for classification, scale division etc. for specific issues (hereafter “smart modules”). The templates help you or the radiologists employed at your hospital or clinic (hereafter “employees”) to create your own reports for your patients by providing a report structure along with building blocks of text (hereafter “structured online reporting”).
You may navigate through the report structure by activation of function buttons or with the help of a voice control.
At the end of this structured online reporting, Smart Reporting proposes a wording for the report (hereafter “proposed wording”). You have to verify the proposed wording and may alter, amend and add text passages (“free texts”) as required, then copy it and save it on your computer or server.
2.2.2 Section 2.2.1 applies to use of the PROFESSIONAL version provided that: You may integrate the software into your existing IT system (e.g. RIS). You then receive access to all smart templates and smart modules. The proposed wording will be exported. A manual transfer is not required.
2.3 Smart Reporting also offers you a diagnostic report editor which enables you to create your own smart templates, Smart modules and translations which you may share with selected users or publish on the website according to Section 11.
2.4 In addition to the use of structured online reporting, you may also use the website to exchange information. For this purpose, you may upload texts, photos, graphics, videos, or other material (hereafter “material”) or link such material to the software.
2.5 Smart Reporting renders service features in conjunction with the software and the diagnostic report editor (hereafter “smart radiology service”) and supports you individually with your first installation as well as with adjustment and new development of smart templates and smart modules (hereafter “individual services”).
2.6 Smart Reporting does not provide internet access or any other technical services that are required to use the software.
2.7 Smart Reporting continuously strives to optimize and enhance the software. This may require changes, particularly with regard to the technical requirements of structured online reporting.
2.8 Smart Reporting may at all times assign wholly or in part the software`s operation to subcontractors. Subcontractors are contractually bound by Smart Reporting’s data privacy rules and obliged to maintain confidentiality.
3.1 You may use the website only after registration. Registration requires compulsory information that is requested during the registration process (hereafter “contract data”). You assure that the contract data is complete and correct and that you have not used the data of third persons. You shall inform Smart Reporting immediately of any changes to the contract data.
3.2 The following provisions apply as far as a contract about using the software (hereafter: “user contract”) has not already been concluded by signing a separate agreement:
3.2.1 By completing the registration procedure, you make a binding offer to form the user contract (hereafter “offer”). Prior to this, we provide you with a summary of the contract data. You may correct the data by using the buttons provided. Your offer will be binding on you for five (5) working days. Within this period of time, Smart Reporting reserves the right to accept or decline your offer. You are not entitled to claim the conclusion of the user contract.
3.2.2 After registration, you will receive an email confirming the conclusion of the user contract (hereafter “confirmation”). On receipt of the confirmation, the user contract is valid and binding. Smart Reporting will now create your user account. Smart Reporting will store the confirmation, but you cannot open it and look at it again on the website.
3.3 You can consult your contract data at any time in the internal section of the website under “Preferences”. Smart Reporting will use the contract data only for the performance of the user contract. In addition, Smart Reporting evaluates anonymized user data for statistical and empirical purposes.
3.4 Only natural persons which are legally competent, legal entities or partnerships may register. Legal entities or partnerships may only be registered by their natural representatives who must be named at registration. Only individuals or partnerships may be registered as owners of the user account (i.e. no married couples or families). Multiple registrations under various user names are forbidden.
4.1 You are entitled to cancel this contract if you are a consumer and use the website in return for payment. You may find information on your cancellation rights in the separate cancellation instructions, to which we refer. You may access the cancellation instructions at: www.smart-radiology.com/downloads/en-revocation.pdf.
4.2 In case this contract is cancelled, Smart Reporting reserves the right to refund via a means of payment differing from the one you chose for initial payments.
5.1 You will receive personal login data that may be used only by yourself or such employees as you have indicated are entitled to access your user account. You shall ensure – as the case may be by instruction or agreements – that:
5.1.1 Login data is not passed on to third parties;
5.1.2 Passwords are chosen which are difficult to guess;
5.1.3 Login data and passwords are kept secret and separate from documents and information that mark them out as being login data or passwords for your user account; and
5.1.4 Login data will be immediately changed by you, your employees or Smart Reporting if you or your employees gain knowledge about misusage of the login data. This also applies if you or your employees merely suspect or fear such misusage.
5.2 You are liable for damage as set out in Section 17 below.
5.3 In case of significant violation of the due diligence provisions according to Section 5.1, Smart Reporting is entitled (temporarily) to block your access to the user account. Smart Reporting shall notify you of this via email.
6.1 The term of the user contract depends on your selection at registration (hereafter “term“).
6.2 User contracts of indefinite term may be terminated by both parties at any time before two (2) weeks prior to the end of a month. User contracts which are running for a limited period may be terminated at any time before two (2) weeks prior to the end of the respective duration. If a user contract which has been concluded for a limited period is not effectively terminated, it is extended automatically by the duration that was most recently in effect, but not for longer than for one year. Termination must be in writing. In particular, you may issue the termination via email to firstname.lastname@example.org.
6.3 Irrespective of the ordinary notice of termination, both parties have the right to termination for cause without notice. For Smart Reporting, such cause is given in particular if:
6.3.1 You are in full or partial default of a payment, which has become due and payable;
6.3.3 The requirements of a statute, a court or an authority do not allow Smart Reporting to offer the software in the form agreed to under this agreement; or
6.3.4 Smart Reporting discontinues the distribution of the software or its business.
6.4 After contract termination, you no longer have access to your user account. Smart Reporting is not responsible for backing up the information stored in your user account.
7.1 Whether or not you must pay a fee for using the software (hereafter “usage fee”), depends on the kind and extent of use you have selected upon registration or the respective contractual terms (hereafter “extent of use”). Information regarding the extent of use and the usage charges can be found in the schedule of prices and services currently in force under www.smart-radiology.com/downloads/us-pricesandservices.pdf.
7.2 To the extent that the use of the software is offered free of charge, we retain the right to change the scope of usage at any time.
7.3 You may extend (hereafter “extension”) or limit (hereafter “limitation”) the extent of use initially selected at any time.
7.3.1 An extension is also possible during the contract term. Upon receipt of the confirmation of an extension, a new user contract becomes valid and binding. The changes to the extent of use come into effect no later than the next working day. Payments already made are counted proportionally against any usage fee due after extension.
7.3.2 For user contracts of indefinite term, a limitation of the extent of use is only possible at the end of each month, for user contracts running for a limited period only at the end of the agreed contract term. Section 7.3.1 applies accordingly.
7.4 You shall pay the usage fees in advance. With regard to a user contract running for a limited period, payment of the usage fee is due upon contract formation pursuant to Section 3. Payments of contracts of indefinite term are due at the 1st day of every month of use, and are invoiced by Smart Reporting.
7.5 All invoices shall be paid within fourteen (14) business days after their receipt.
7.6 If you are in default with a payment, Smart Recording is entitled to charge interest to the amount of nine (9) percentage points above the base interest rate unless you are a consumer. If you are a consumer, interest amounts to five (5) percentage points above the base interest rate. Smart Reporting reserves the right to provide evidence for higher damages.
7.7 You may only set off claims that Smart Reporting does not contest or that have been legally recognized against the payment claims by Smart Reporting. This does not apply if your claim is based on a valid order for goods, which entitles you to retain payment until delivery of such goods. You may only execute your right of retention if your counter-claim is based on the same contractual relationship.
7.8 If you do not fulfil your payment duties or if paid moneys are reversed, Smart Reporting is entitled to block access to the user account. If the blocking or suspension is due to outstanding sums and, if such sums are paid, the access will be unblocked.
7.9 If you are an entrepreneur, Smart Reporting is entitled to change the usage charge for the upcoming contract term. Smart Reporting will notify you about any changes at the latest eight (8) weeks before the changes come into force. If you disagree with the changes, you may object to the changes no later than four (4) weeks before the changes come into force. In that case, Smart Reporting may terminate the user agreement by ordinary notice of termination. If you do not object to the changes, your agreement with the changes will be presumed.
8.1 Smart Reporting solely provides you with tools helping you to create your reports. The software itself does not create reports and does not offer them. The software only proposes wordings for building your reports based on the data you entered.
8.2 During the process of structured online reporting, Smart Reporting does not ask for patient-related data such as name, date of birth, age or gender (hereafter “patient data”). Patient data may only be added to the proposed wording after you have transferred the proposed wording to your computer or server and have continued to use it locally. You shall not enter personal patient data into the website.
8.3 Smart Reporting provides a standardized process for releasing smart templates and smart modules to ensure that they are created with due care. However, Smart Reporting does neither represent nor warrant that smart templates and smart modules take into account all scientific findings or that the proposed wording correctly describes the report at any rate. The use of the smart templates does not discharge you of the duty to carry out an independent and careful diagnosis. While using your selected smart templates and smart modules as well as the proposed wordings, you remain solely responsible for ensuring a correct diagnosis and a correct, accurate and complete documentation of your patient’s report.
8.4 If you use the software in your capacity as the operator of a clinic or radiological practice, you shall ensure, by appropriate instructions and agreements, that your employees comply with the obligations as set out in Sections 8.2 and 8.3 of this agreement. You shall be responsible for any misconduct of your employees in relation to smart reporting.
8.5 You shall indemnify and hold harmless Smart Reporting against any loss, damage, liability, or expense (including reasonable attorneys’ fees) sustained by it as a result of third-party claims based on violations of Sections 8.2 and 8.3, unless you are not responsible for such violation. You shall promptly notify Smart Reporting in writing of the claim. Smart Reporting shall have sole control of its defense and settlement. Smart Reporting shall receive reasonable assistance from you in its defense and settlement. You shall make no admission or settlement in respect of such claim.
8.6 If you or any of your employees enter patient data into the website in violation of Sections 8.2 or 8.3, Smart Reporting is entitled to remove and delete all or part of the information from the software.
9.1 You shall not to misuse the software. In particular you are not allowed:
9.1.1 To pass yourself off as another person on www.smart-radiology.com or its sub-sites, or a subdomain and its sub-sites, particularly as an office holder, an employee or representative of Smart Reporting, or as someone responsible for the service, or pretend to be affiliated with such person;
9.1.2 To replicate or manipulate user names or other identifications in order to disguise the origin of contents transferred using the software;
9.1.3 To save or publish and/or transfer on the software unsolicited advertising material, chain letters or other actions using a snowball system;
9.1.4 To copy, sell, share, publish or use for any commercial purposes, other than as allowed by the user contract, the information offered by Smart Reporting or other users of the software;
9.1.5 To collect, store, and/or transfer personal data of other users, except as permitted by applicable law;
9.1.6 Except as allowed by this agreement regarding the creation of Templates, to block, overwrite or change content belonging to Smart Reporting;
9.1.7 To use, access, or communicate with the software in a manner that impairs the security, integrity and/or availability of Smart- Reporting systems and software; or to disturb in other ways the normal functioning of the software; or to access the platform, or any data contained in the software, in an unauthorized way.
9.2 If you use the software as an operator of a hospital or radiology clinic, you are responsible to ensure, by relevant instructions and agreements, that the duties pursuant to Section 9 .1 are complied with by your employees, and you are liable for any abusive conduct by your employees with respect to Smart Reporting.
9.3 You shall indemnify and hold harmless Smart Reporting against any loss, damage, liability, or expense (including reasonable attorneys’ fees) sustained by it as a result of third-party claims based on violations of Sections 9.1 and 9.2, unless you are not responsible for such violation. You shall promptly notify Smart Reporting in writing of the claim. Smart Reporting shall have sole control of its defense and settlement. Smart Reporting shall receive reasonable assistance from you in its defense and settlement. You shall make no admission or settlement in respect of such claim.
9.4 In case of material misuse of the platform pursuant to Sections 9.1 and 9.2, notwithstanding any other rights Smart Reporting may have under this agreement or at law, Smart Reporting may temporarily block your access or the access of individual employees to the user account. If the access to the user account is blocked, you must not obtain access to the software by means of a new or alternative user account.
Smart Reporting does not ask for any personal patient data in the course of the process of structured online reports. In the course of such structured online reports, anonymous or anonymized data (hereafter “diagnostic data”) will thus be gathered. You herewith grant Smart Reporting the right to store and save diagnostic data and to use and commercially exploit such diagnostic data for purposes of quality management, scientific purposes, technical analysis or the provision of services via the software. For said purposes, Smart Reporting may also transfer diagnostic data to third parties. Your right to use diagnostic data for medical treatment of your patients remains unaffected.
11.1 The publication of a smart template or smart module you have created requires prior approval by Smart Reporting. Smart-Reporting retains all rights to publication of any smart templates or smart modules created for the software. For this purpose, smart reporting commissions one or several independent radiologists with relevant expertise (hereinafter "reviewer") to check the quality of the smart template or smart module that you have set, and, if necessary, to improve and release it for publication. There is no entitlement to publication.
11.2 By uploading a smart template or smart module to the website or releasing it as reviewer for publication, you attest that you have generated or verified the template, respectively, according to the relevant current state of medical sciences in effect at the time of the publication. Smart Reporting will credit you as (co-) author upon publication and usage of the smart template or smart module.
11.3 Users may evaluate and comment on smart templates or smart modules (hereafter “evaluation”). Smart Reporting is not responsible for the content or judgment of such evaluations. Evaluations are not reviewed. If you take the view that an evaluation is wrong, not objective or insulting or violates your rights in other ways, please notify us via email at email@example.com so that we can inspect the evaluation and protect your rights.
12.1 With the exception of smart templates and smart modules which have been accepted by us pursuant to Section 11, you are solely responsible for all content that you store, publish or transfer during software usage (hereafter “content”). You will inspect the contents thoroughly. There is no inspection by Smart Reporting.
12.2 You ensure that the contents:
12.2.1 Are solely related to authorized software usage;
12.2.2 That you store, publish and/or transfer, according to the relevant statutes and your due assessment are not unlawful, do not discriminate against race, religious belief or gender, do not amount to harassment, insult, defamation, obscenity, pornography, or the glorification of violence;
12.2.3 That you store, publish and/or transfer do not violate either directly or indirectly third party rights, particularly patents, trademarks, licenses, copyrights and neighboring rights, other property rights or personal rights;
12.2.4 Do not contain information or data that you are, by contract and/or according to applicable law, not allowed to store, publish and/or transfer;
12.2.5 Contain no patient data or other personal data; and
12.2.6 Do not contain information such as instructions that are capable of causing direct or indirect bodily harm or physical damage. When uploading content you undertake (insofar as it is necessary), to indicate authorship, copyright or similar rights truthfully and completely.
12.3 If you use the software as an operator of a hospital or radiology clinic, you ensure by instructions and agreements that the duties according to Sections 12.1 and 12.2 are complied with by your employees, and you are liable for any abusive conduct by your employees with respect to Smart Reporting.
12.4 You shall indemnify and hold harmless Smart Reporting against any loss, damage, liability, or expense (including reasonable attorneys’ fees) sustained by it as a result of third-party claims which result from your violation of this agreement pursuant to Section 12.2., unless you are not responsible for the violation. You shall promptly notify Smart Reporting in writing of the claim. Smart Reporting shall have sole control of its defense and settlement. Smart Reporting shall receive reasonable assistance from you in its defense and settlement. You shall make no admission or settlement in respect of such claim.
12.5 Smart Reporting is entitled to completely or partially remove content from the software and delete it, if it does not comply with the requirements pursuant to Section 12.2.
13.1 Smart reporting will, at its own discretion, use smart templates, smart modules, translations, materials and other content you have entered via the website in the context of services related to radiological diagnosis, in particular integrate them into the software in identical or modified version, exploit them via the website, in particular commercialize them and/or to provide them to users of the software and third parties against payment or free of charge for the purpose of creating structured reports.
13.2 By entering smart templates, smart modules, translations, materials and other content into the website, you grant Smart Reporting an irrevocable, unlimited and exclusive right to use or have others use said content for the purpose as set out in Section 13.1 – including several uses – in tangible and intangible form, digital or analog, against payment or free of charge, also for advertising purposes. This grant of rights includes in particular:
13.2.1 The right of reproduction,
i.e. the right to reproduce smart templates, smart modules, translations, materials and other content according to the purpose of the contract – including on data carriers other than the ones used originally– digital or analog, permanently or temporarily, wholly or partially and to the same extent as the original;
13.2.2 The right of online use
i.e. the right to use smart templates, smart modules, translations, materials and other content wholly or partly, unprocessed or processed, using analog, digital or other storage and data transmission technology, with or without caching (e.g. Internet, WAP, GPRS, UMTS) addressed to a restricted or unrestricted user group in such a way that the smart templates, smart modules, translations, materials and other content may be retrieved, replayed, stored, transmitted and printed by means of stationary or mobile terminals of all kinds (e.g. PCs, Smartphones, tablets, TVs, Smart TVs, e-readers) can be retrieved, , irrespective of time and location, in particular while using audiovisual services of any kind, television and media services, internetbased distribution platforms, mobile phone based services, intranet, extranet, apps (regardless of their operating system), SMS, MMS, subscription services, newsletters, blogs, push and pull services, Twitter services, social networks (including allowing third parties to share and recommend the social media posts); it also includes the right to interactively use smart templates, smart modules, translations, materials and other content or parts thereof;
13.2.3 Broadcasting right
i.e. the right to make available to the public smart templates, smart modules, translations, materials and other content through sound and television broadcasting, satellite broadcasting, cable radio and/or similar technical means (e. g. Electronic waves, optical signals etc.) by means of analogue, digital and/or other transmission technology, including all bandwidths, resolution standards (e.g. high, standard, low-definition, etc.), irrespective of the compression method and/or data rate via radio, telecommunication and/or other services encrypted or unencrypted, wholly and/or partly accessible. This applies to an unlimited number of broadcasts and to all technical means in particular terrestrial transmission systems (including all frequency ranges and all transmission standards, e.g. HSDPA, DVB-T, DVB-H, DMB, GPRS, UMTS, UHF, VHF, WiMAX, WLAN etc.), cable systems (e.g. B. Data lines, telephone lines, coaxial, fiber optic cable networks and/or two or more wire systems such as DSL, VDSL, including cable transmission etc.) and satellite systems (e.g. telecommunications satellites, direct satellites, DVBSH etc.). The broadcasting right includes the possibility of multiplexing, i.e. the bundling of transmitting signals on transmission channels, as well as the addressed transmission in particular in TCP/IP-based transmission systems or services (e.g. IP-TV, IP-Audio, WebTV etc.). The broadcasting right is independent of the financing method of the broadcasting company (commercial or non-commercial) and/or the framework of the legal relationship between sender and receiver (e.g. with or without payment of a fee for the reception of a sender, package or a single program, etc.) The broadcasting right particularly includes the transmission and service forms of Free TV, Pay TV, pay per view TV, paid per channel, near video on demand etc. The right to reproduce (radio) broadcasts is included;
13.2.4 Exhibition, performance and recital right
i.e. the right to recite smart templates, smart modules, translations, materials and other content in a non-stage form as often as required, including the right to record the recital on video, audio and data carriers of all kinds and to use such records to the extent provided by the contract;
13.2.5 Printing and subsidiary printing rights i.e. the right to publish smart templates, smart modules, translations, materials and other content wholly and/or partly and/or summaries or abstracts of smart templates, smart modules, translations, materials and other content, as well as the right to produce, reproduce, disseminate and/or publicly reproduce illustrated and non-illustrated printed matter of any kind (e.g. books, booklets) which are derived from or based on smart templates, smart modules, translations, materials and other content through reproduction, renarration, redesign and/or other processing of the content and/or by photographic, drawn or painted illustrations or similar matter , in any edition and re-edition in all languages;
13.2.6 Archiving rights
i.e. the right to archive the smart templates, smart modules, translations, materials and other contents in electronic databases together with other content and to make them accessible to third parties, also for downloading, forwarding and printing; and
13.2.7 House advertising rights
i.e. the right to use smart templates, smart modules, translations, materials and other content in media of all kinds (e.g. print, online, mobile, radio and TV) for the purpose of house advertising for smart reporting and their services. This includes the right to produce, reproduce and disseminate content presentations and other printed matter derived from smart templates, smart modules, translations, materials and other content, as well as other promotional literature in the usual scope. It also includes the right to display, make available to the public and/or disseminate smart templates, smart modules, translations, materials and other content wholly or partly at trade fairs, sales exhibitions, advertising events and/or similar events.
13.3 The grant of rights pursuant to Section 13.2 shall be effected for the duration of the term of copyright. Section 40a German Copyright code (hereafter “UrhG”) remains unaffected.
13.4 You also grant Smart Reporting an unlimited, exclusive right for all kinds of use unknown at the time of the conclusion of the contract. You remain entitled to revocation according to Section 31a UrhG.
13.6 As far as the purpose of the contract requires, Smart Reporting may transfer the rights granted in accordance with the aforementioned provisions as well as sublicense rights third parties exclusively or non-exclusively to use the smart templates, smart modules, translations, materials and other content without your prior consent.
13.7 There is no obligation for Smart Reporting to use smart templates, smart modules, translations, materials and other content.
13.8 You irrevocably authorize smart reporting to enforce all claims arising out of any infringement of copyright subsisting in smart templates, smart modules, translations, materials and other content.
13.9 Notwithstanding the aforementioned provisions, Smart Reporting is entitled, to store smart templates, smart modules, translations, materials and other content and to pass them on to third parties if this is required by law or legitimate and necessary according to best judgment in order to
13.9.1 comply with legal regulations or judicial or regulatory orders,
13.9.3 react to it when third parties claim a violation of the law or
13.9.4 ensure the rights, property or personal safety of Smart Reporting, its users or the public.
13.10 To the extent that you use smart templates, smart modules and translations for structured online reports, Smart Reporting grants you a non-exclusive right for the statutory term of protection and any extension of said term to use and process the wording proposal for the purpose provided for in the contract. There is no right to use individual text blocks. It is also prohibited to copy, redistribute, make publicly available or edit smart templates, smart modules and translations without the consent of smart reporting. You agree (where available) to provide truthful and complete information on authorship, copyright and similar rights when using the wording proposal.
13.11 The rights of use granted in accordance with the aforementioned provisions shall remain in excess of the duration of the contracts concluded between Smart Reporting and you, unless you terminate the contracts for cause. In this case, all rights of use shall fall back. Any previous use will not be affected and may thus be continued.
13.12 Upon termination or expiration of the agreement between you and Smart Reporting, you shall be entitled to access, download, or edit existing reports which you have created for a period of 90 days. Once this 90 day period has expired, Smart Reporting shall have returned to you all reports to which you had access, in a form readable and useable by you. Additionally, after the expiration of the 90 day period, Smart Reporting shall delete all reports which you created within the Platform.
14.2 You shall indemnify and hold harmless Smart Reporting against any loss, damage, liability, or expense (including reasonable attorneys’ fees) sustained by it as a result of third-party claims which result from your use or misuse of smart templates, smart modules, translations, materials and other content generated and uploaded by you, unless you are not responsible for such violation of third-party rights. Smart Reporting shall receive reasonable assistance from you in its defense and settlement.
15.1 Smart Reporting respects the intellectual property of third parties and demands this respect in turn from its users.
15.2 If you take the view that your copyrights or other rights are infringed upon by content that one of our users has stored, published or transferred in the scope of our services, please notify us via email at firstname.lastname@example.org so that we can immediately take action against the misuse of our services and protect your rights. Please provide the following information:
15.2.1 A description of, for example, the work that is copyright protected, and that in your opinion has been violated;
15.2.2 A description, as detailed as possible, of where the material is located, which in your opinion infringes your copyrights or neighboring rights, preferably by means of a screenshot;
15.2.3 Your address, telephone number and email address;
15.2.4 A statement signed by you that, according to your best knowledge and belief, the faulty usage has not been approved by the rights holder, his representative or by statutory laws.
16.1 SMART REPORTING DISCLAIMS ALL WARRANTIES, CONDITIONS AND OTHER TERMS RELATING TO THE SUPPLY, PURPORTED SUPPLY, DELAY IN SUPPLYING OR FAILURE TO SUPPLY THE SOFTWARE, OR QUALITY OF PERFORMANCE OF PLATFORM, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES, CONDITIONS OR OTHER TERMS OF SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY EXCLUDED.
17.1 Nothing in this Agreement shall exclude or limit either party’s liability for: (i) death or personal injury caused by its negligence; (ii) the tort of deceit; or (iii) any other liability which cannot be excluded or limited by law.
17.2 SUBJECT TO THE FOREGOING, THE PARTIES’ AGREE THAT THE TOTAL LIABILITY TO EACH OTHER FOR DAMAGES OF ANY KIND IN ANY YEAR OF THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED ONLY TO THE AMOUNT OF PAYMENTS RECEIVED BY SMART REPORTING FROM YOU UNDER THIS AGREEMENT IN THAT YEAR. EXCEPT FOR BREACHES OF THE CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR SAVINGS, LOST BUSINESS, LOSS OF DATA, LOSS OF REVENUE, LOSS OF USE OR MONEY, LOSS OF BUSINESS, LOSS OF OPPORTUNITY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (WHETHER OR NOT ALSO CONSTITUTING ONE OF THE FOREGOING SPECIFIC TYPES OF LOSS), WHETHER BASED ON BREACH OF CONTRACT TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. LIABILITY ACCORDING TO THE LAWS ON PRODUCT LIABILITY [“PRODUKTHAFTUNGSGESETZ”] REMAINS UNAFFECTED.
18.1 If events or circumstances lying beyond the sphere of influence of Smart Reporting (Force Majeure) make the operation of the platform impossible, Smart Reporting is exempted from the duty to perform. You will be reimbursed for payments already made.
18.2 If particular events of Force Majeure constitute the interruption or breakdown of the internet or other networks, telecommunication connections, power supply or of infrastructures and of providers and suppliers.
19.1 Smart Reporting has established a privacy and information security program which is compliant with the privacy and security rules promulgated by 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.
19.2 Where required by applicable law, Smart Reporting (and any such agent used by Smart Reporting for the development, use or maintenance of the platform), 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.
19.3 During the term of this Agreement, each party to this Agreement may disclose certain information which either party would reasonably deem confidential (“Confidential Information”) to the other party. Each party shall refrain from using or exploiting any and all Confidential Information of the other party for any purposes or activities other than those specifically authorized in this Agreement. Except as otherwise specifically permitted herein or pursuant to written permission of the party to this Agreement owning the Confidential Information: (i) each party represents and warrants that it will hold Confidential Information in confidence and protect the Confidential Information to the same extent and by the same means it uses to protect the confidentiality of its own proprietary or confidential information that it does not wish to disclose; (ii) neither party shall disclose or facilitate disclosure of Confidential Information of the other party to anyone except its employees who are authorized according to this Agreement and who need to know such information for purposes set forth in this Agreement, and will procure that those of its employees and consultants to whom the Confidential Information is disclosed, comply with its obligations under this Agreement with respect to the Confidential Information; and (iii) all Confidential Information made available hereunder, including copies thereof, shall be returned to the disclosing party or shall be certified as destroyed at the request of the disclosing party.
19.4 The obligations of each party under this Agreement will not extend to any information that: (i) is known to the other party on the date of disclosure and/or was independently and legally derived or developed by the receiving party at the time of disclosure; (ii) becomes publicly known by public use or by publication or otherwise ceases to be secret or confidential through no fault of the other party; (iii) is acquired by either party from a third party which was not, to the recipient's knowledge, under an obligation to the disclosing party not to disclose such information; (iv) has been approved for release by written authorization of the disclosing party; or (v) has been disclosed pursuant to a requirement of law, provided, however, that in such an event, as soon as practical after receiving the order or requirement of a court, administrative agency or other governmental body, the receiving party shall give the disclosing party a written notice of such order or requirement and, in any event, such notice shall be prior to disclosure of such information.
The European Commission offers an online dispute resolution platform which can be found here. Smart Reporting is neither willing nor obliged to participate in dispute settlement proceedings before consumer arbitration boards.
This Agreement is made in accordance with, and shall be governed and construed under, the laws of the State of New York. The parties expressly waive the United States Convention for the International Sale of Goods. If you are a consumer, the choice of law does not cause you to be deprived of any protection granted to you by mandatory consumer protection regulations, which apply according to your domicile. Further, the choice of law does not mean that you have to enforce your rights at a foreign court.
23.1 There are no oral agreements.
23.3 In case you are an entrepreneur, a legal entity of public law or an administrative body, the parties herewith irrevocably submit to the jurisdiction of the courts of Munich.
23.4 The relationship of the parties established by this Agreement is of licensor and licensee or independent contractors, and nothing in this Agreement shall be construed to give either party the power to direct or control the daily activities of the other party; or constitute the parties as principal and agent, employer and employee, partners, participants in a joint venture, co-owners or otherwise as participants in a joint undertaking. The parties understand that, except as specifically provided for in this Agreement, neither party grants the other party the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on its behalf, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on its behalf, or to transfer, release, or waive any of its rights, title or interests.
23.5 Smart Reporting is entitled to assign the existing rights and duties from the contract with you to another company. If an assignment takes place, you will receive a notification, which also includes a term for the deletion of the user account in case you do not agree with the assignment.
23.6 This Agreement contains the entire understanding of the parties as to its subject matter and supersedes all other (including prior) agreements, arrangements, representations, warranties, conditions or other terms in relation to its subject matter, and may not be modified except in writing executed by both parties.
23.7 The failure, refusal or neglect by any party to exercise any right, power or option provided for herein shall not be deemed a waiver of any right, power or option hereunder. Any waiver of any right or default hereunder shall be effective only if made in writing and in the instance given and, shall not operate as or imply a waiver of any similar right or default on any subsequent occasion.