LAST UPDATED ON January 20, 2015
General Terms and Conditions for the Use of Quentry
Exhibit 1: SFDC Service Agreement
Exhibit 2: Business Associate Agreement
- Acceptance of Terms
- Subject Matter; User License
- User Obligation; Restrictions on Use
- Subscriptions; Fees; Free Trial; Payment
- Responsibility for User Data and Patient Data
- Ownership; Third Party Licenses; Feedback
- Term and Termination
- No Medical Advice
- Limitation of Liability
- Data Protection
- Compliance with Law
- General Provisions
"Quentry" refers to the services available at quentry.com, www.quentry.com and all sub domains ("Services") provided subject to these General Terms and Conditions ("Terms"). "You" or "Your" refers to the individual, company or other legal entity for which you are accepting these Terms. Brainlab refers to Brainlab AG as the service provider of Quentry.
1. Acceptance of Terms
1.1 These Terms shall govern the contractual relationship between You and Brainlab and Your use of Quentry and applications/elements available through Quentry. If You use a free trial of applications/elements through Quentry, these Terms shall also govern Your free trial. Further terms and conditions shall apply upon purchase of a paid premium subscription package, feature, or application.
1.2 Either by checking the box indicating Your acceptance of these Terms, which is displayed as part of the registration process, or logging into Quentry, You agree to be legally bound by the Terms for using Quentry. If You do not agree with these Terms, You should not accept the Terms and should not register to use Quentry.
1.3 If You are accepting these Terms on behalf of a company or other legal entity, You represent that You have the authority to bind such entity to these Terms.
2. Subject Matter; User License
2.1 Quentry provides a web based software for medical professionals that (i) supports users to build a global clinical network, (ii) provides an online community to work in virtual groups and (iii) provides users with tools for secure online image (DICOM) storage, review, transfer and sharing (collectively "Intended Use"). QUENTRY IS NOT INTENDED FOR PRIMARY DIAGNOSIS, UNLESS EXPLICITLY STATED OTHERWISE, AND IS NOT INTENDED FOR DETAILED TREATMENT PLANNING OR TREATMENT OF PATIENTS. "User Data" shall mean any information or data submitted, disclosed or shared by You within the online community. "Patient Data" shall mean any data belonging to patients to be shared with and/or transferred to other users expressly selected and authorized by You.
2.2 Unless authorized by You, Brainlab shall not take part in any communication between You and other users. If You enter into any agreement or communication with another user by using Quentry, in no event shall Brainlab become a contracting party to such agreement nor be responsible or liable, directly or indirectly, for any duty, damage or loss caused or alleged to be caused by or in connection with such agreement or communication.
2.3 Subject to the Terms and for the duration of Your Account (as defined below), Brainlab grants to You a personal, limited, non-transferable, non-exclusive right to access and use Quentry in accordance with these Terms, the user manual and the respective service description of the selected subscription and/or available under quentry.com/learn and/or terms and conditions of sale, as applicable, however, restricted to the Intended Use ("User License").
2.4 You acknowledge and agree that it is technically impossible to achieve 100% availability of Quentry. In particular, Brainlab shall not be responsible or liable, directly or indirectly, for any unavailability of Quentry caused by circumstances beyond Brainlab's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Brainlab employees), or internet service provider failures or delays. In the event of planned downtimes, Brainlab will give at least 8 hours prior notice, if feasible.
3.1 You must register prior to using Quentry by entering all required user information displayed as part of the registration process. You shall not use pseudonyms or pen names. Your Brainlab ID will not be visible for any person outside of the Quentry Services.
3.2 You warrant and represent that any information provided by You for registration ("Registration Data") is accurate and complete. In the event of any changes in the Registration Data, You shall correct such data without undue delay. Due to the fact that Brainlab is unable to verify whether any user registered with Quentry is in fact the person he/she represents to be, Brainlab assumes no liability or responsibility for any inaccurate or incomplete user information or noncompliance with these Terms among users.
3.3 You warrant and represent that (i) You are (a) a physician or medical physicist with valid license to practice according to applicable law or a team member of such physician or medical physicist, or (b) an IT administrator associated with a physician or medical physicist with valid license to practice according to applicable law, or (c) a healthcare-related professional that has obtained Brainlab's prior written approval to use the Services, and (ii) the only purpose of Your registration is to use Quentry in the course of Your professional activity and within its Intended Use, and (iii) You are of legal age at the time of registration, however at least 18 years, having full legal capacity. Brainlab reserves the right to contact You in order to verify Your representation and Registration Data. For verification, You are obliged to provide adequate proof upon request. Brainlab may disable access to Your user account until receipt of proof.
3.4 You shall keep Your password secret at all times and avoid disclosing Your password to any third party including Brainlab at all times. Brainlab will not ask for your password at any time. You agree to accept responsibility for all activities that occur under your password.
3.5 Your registration for Quentry in the course of the online click-through process shall be deemed to be Your agreement to abide by the Terms including any materials available on Quentry incorporated by reference herein. By activating Your user account, Brainlab accepts Your request to use Quentry.
3.6 Unless otherwise expressly agreed in writing, You are entitled to register with Quentry only once. You may only establish one (1) user account and may not share Your account with any other user or any other individual.
3.7 Unless otherwise expressly agreed in writing, You shall not register for and use or access Quentry if You are a direct competitor of Brainlab or offering similar services. In addition, You shall not access Quentry for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. In case of violation, Brainlab may terminate Your Account with immediate effect.
4. User Obligation; Restrictions on Use
4.1 While using Quentry, You shall be responsible for Your compliance with the Terms, and be solely responsible for Your actions performed under Quentry and the contents of all User Data and Patient Data posted, submitted or otherwise disclosed by You, including its accuracy, quality, integrity and legality.
4.2 You shall not submit or otherwise disclose Patient Data that contain personal identifiable information relating to other individuals, unless You have obtained prior voluntarily informed written consent from the individual concerned or otherwise permitted by applicable law. When submitting or otherwise disclosing Patient Data through Quentry, You warrant and represent that You are authorized to transfer and disclose such data, either by having obtained informed consent from the person concerned or by being duly authorized in accordance with applicable law, and that such transfer and disclosure is not prohibited by any applicable law. Whenever possible, You shall only submit or disclose anonymized or otherwise de-identified data that do not contain personal identifiable information relating to other individuals. You shall not use Patient Data for any other purposes than those specified by the disclosing user. Upon request of the disclosing user or any person entitled, You shall immediately cease using and delete such Patient Data.
4.3 Physicians, medical physicists and other healthcare professionals are bound by medical confidentiality. Therefore, when using Quentry, healthcare professionals are responsible for (a) anonymization of patient data according to applicable laws and regulations or (b) obtaining patients prior written release from medical confidentiality according to applicable laws and regulations. This written release from medical confidentiality has to refer to the processing of Protected Health Information (PHI) at Quentry.com, a web-based Service owned and operated by Brainlab AG, Germany. It also has to comprise that in case of catastrophic event requiring a data recovery and for necessary maintenance of the Service, PHI may be transferred to Brainlab AG’s subsidiary Brainlab Ltd., Israel.
4.4 You shall not use Quentry for any purpose that is unlawful or prohibited by these Terms. You acknowledge and agree that Quentry is released for use in specific countries listed on the FAQ
. You agree and acknowledge that access to Quentry from countries not expressly specified is strictly prohibited. You shall comply with all applicable local, state, national and foreign laws, treaties, regulations and third-party rights, including, without limitation, those related to data privacy, international communications, the transmission of technical or personal information, and government regulations.
4.5 You agree that when using Quentry, You will not
4.5.1 modify, decompile, reverse engineer, disassemble, attempt to discover the source code or algorithms of, or create derivative works based on, any of the Services or any part thereof, or access Quentry in order to build a competitive product or service or to copy any ideas, features, functions or graphics of Quentry;
4.5.2 ddisable or circumvent any access control or related device, process or procedure established with respect to Quentry or any part thereof. Such prohibited conduct includes, without limitation, any efforts to gain unauthorized access to any Services, other user accounts, computer systems or networks connected to any of the Services, through hacking, password mining or any other means, log into an account with a password not assigned to You, access identifiable information not intended for You, test the security measures on Quentry and/or attempt to identify system vulnerabilities, attempt to disable Quentry, or interfere with the access, use of, or any activities conducted on Quentry by any other user;
4.5.3 transfer, resell, sublicense, rent, lease, lend, assign, copy or otherwise make Quentry available in whole or in part to any third party;
4.5.4 advertise to, or solicit, any user to buy or sell any products or services and to use the information obtained from Quentry in order to contact, solicit, advertise or sell any products or services to any user;
4.5.5 collect information about other users of Quentry for any purpose other than Your use as expressly permitted by these Terms;
4.5.6 distribute or publicly disclose the contents of Quentry or any other user, and/or any information related to Quentry, including but not limited to technical data, product descriptions, and any other information which is readily and reasonably identifiable as confidential based on its nature and/or the circumstances of its disclosure;
4.5.7 use Quentry to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or in violation of third party privacy rights, send spam, contests, pyramid schemes, chain letters, junk emails or otherwise duplicative or unsolicited messages, send or store material containing software viruses, worms, trojan horses, malicious code, or other harmful computer code, files, scripts, agents or programs;
4.5.8 defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of other users of Quentry or any third party;
4.5.9 use without authorization any contents protected by law, such as by copyright, trademark, patent, utility patent, or design patent laws, or advertise, promote, offer or distribute any goods or services protected by law.
4.6 You shall refrain from using Quentry beyond its Intended Use, notify Brainlab immediately of any unauthorized use of any password or account or any other known or suspected breach of security, report to Brainlab immediately and use reasonable efforts to stop immediately any copying or distribution of content that is known or suspected by You using Your account, and not impersonate another user or provide false identity information to gain access to or use Quentry.
4.7 You shall be responsible for obtaining and maintaining of technical equipment, resources and other requirements needed to access and use Quentry, including but not limited to computer hardware, software, communication devices and internet access ("Equipment"). Any costs arising out of or in connection with the Equipment shall be borne by You. Details on technical requirements for using Quentry are set forth in the Technical Facts Sheet which is available under "Help" after logging-in.
4.8 Without limiting the foregoing, Brainlab may disable, restrict access to or the availability of Quentry if it determines any of the restrictions on use have been violated. Brainlab may also delete any content, information or other material that Brainlab deems to be illegal, offensive or otherwise in violation with the Terms.
5. Subscriptions; Fees; Free Trial; Payment
5.1 Quentry offers two types of subscription accounts: a User Account for individuals and a Business Account for organizations, herein collectively referred to as “Account”. Individual User Accounts are provided at no cost via online signup form at quentry.com, and may be upgraded by You with premium subscription packages, subscription-based features, and/or application licenses (“Paid Subscription(s)”) which are subject to additional fees. Business Accounts are provided when purchasing Paid Subscription(s). Details on Paid Subscriptions are provided on quentry.com
, and under “Help” after logging in. Please contact Your Brainlab sales representative in order to purchase Paid Subscription(s).
5.2 Brainlab may make one or more Services or applications available to You on a trial basis free of charge until the earlier of Your or Brainlab's termination at any time, the end of the trial expiration period, or the start date of any subscription period or Paid Subscription(s) ordered by You. Additional trial terms and conditions may appear in the course of the registration for such trial and shall be incorporated into these Terms. Unless terminated by You or Brainlab during the trial period or otherwise stated, Your free trial will turn into and continue as a Individual User Account after expiration of Your free trial.
5.3 Additional Integration Services: Use of downloadable Quentry DICOM integration tools may require purchase of additional licenses and/or services. Brainlab shall provide such installation and/or configuration services upon Your request at Your cost.
6. Responsibility for User Data and Patient Data
6.1 You shall be solely responsible for any User Data and Patient Data posted, submitted or otherwise disclosed by You and verification of the identity of any other user You share such data with and/or transfer such data to. You are also required to follow the rules and regulations of Your professional law. Brainlab will not monitor, examine, supervise or otherwise control any exchange of data, nor content of User Data and Patient Data.
6.2 User Data and Patient data will be stored in an encrypted database. You acknowledge and agree that Brainlab and/or third-party access may not be completely excluded for Your Brainlab ID information (Brainlab ID, email address and password hash). You are solely responsible to ensure that Your User Data does not contain any protected patient information or any other sensitive or confidential information. You acknowledge and agree that other users may search for and see user profile and/or group profile details including contact information, unless You selected to hide such profile information.
6.3 Brainlab does not make any warranties or representations regarding any User Data or Patient Data and/or information provided or made available by any user on Quentry or on any external website linked to it. Brainlab does not warrant or represent that any such data/or information is true or accurate, or that it fulfills or serves any particular purpose.
6.4 You shall report to Brainlab any activities of any other user of Quentry which violate applicable laws and/or any of these Terms.
6.5 Brainlab and/or its affiliates may offer remote support services in connection with the Services. You acknowledge and agree that, when using such remote support services, Brainlab and/or its affiliates may see Patient Data that contain personal identifiable information. You warrant and represent that You are authorized to disclose such data to Brainlab and/or its affiliates, either by having obtained informed consent from the person concerned or by being duly authorized in accordance with applicable law, and that such transfer and disclosure is not prohibited by any applicable law. Whenever possible, You shall only disclose to Brainlab and/or its affiliates anonymized or otherwise de-identified data that do not contain personal identifiable information relating to other individuals. Physicians, medical physicists and other healthcare professionals are bound by medical confidentiality. Therefore, when using Brainlab remote support services, healthcare professionals are responsible for (a) anonymization of patient data according to applicable laws and regulations or (b) obtaining patients prior written release from medical confidentiality according to applicable laws and regulations.
7. Ownership; Third Party Licenses; Feedback
7.1 You acknowledge and agree that Brainlab and/or its licensors own all legal right, title and interest in and to the Service, and any software provided to you as a part of and/or in connection with Quentry ("Software"), including any and all intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist. You further agree that the Service and Software contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You agree that neither You nor any third party shall obtain any express or implied rights in or to any part of Quentry.
7.2 Quentry uses Salesforce.com's platform force.com. Each User License includes a Force.com license which is subject to the SFDC Service Agreement attached as Exhibit 1: SFDC Service Agreement
. This license is limited to the Salesforce.com objects included in Quentry. By clicking on the respective button You agree to be bound by the SFDC Service Agreement.
7.3 For the avoidance of doubt, Brainlab does not claim ownership of User Data and Patient Data You submit or make available through Quentry.
7.4 In the event You elect, in connection with any of the Services, to communicate to Brainlab suggestions for improvements relating to Quentry ("Feedback"), Brainlab shall own all right, title and interest in and to the Feedback. Brainlab shall be entitled to use Feedback in its sole discretion and without restriction. You herby assign all right, title and interest in and to the Feedback to Brainlab and agree to provide Brainlab assistance as may be required to document, perfect, and maintain the rights to the Feedback.
8. Term and Termination
8.1 You may terminate Your User Account at any time without cause by providing written notice. Brainlab may terminate Your User Account without cause by giving thirty (30) days written notice to You.
8.2 Brainlab may terminate Your Account or parts of Services with immediate effect upon notice if You materially breach any of these Terms. In addition, Brainlab shall be entitled to delete User Data posted or submitted by You, issue a warning, and/or block Your access to Quentry until such material breach is cured.
8.3 Brainlab may also terminate Your Account or parts of Services with immediate effect upon notice (a) if any of the Services is not in conformity with applicable laws and legal conformity cannot be ensured within a reasonable time, or the establishment of such conformity would be unduly burdensome or otherwise unlawful for Brainlab, or (b) in order to comply with applicable law or requests of governmental entities, or (c) if Brainlab's relationship with a third party who provides services or any other technology necessary to provide Quentry to You expires, terminates or requires Brainlab to change the way of use of such services or other technology as part of Quentry, or (d) Brainlab is no longer able to provide Services due to circumstances beyond Brainlab's reasonable control, or (e) if Brainlab has, in its sole discretion, decided to suspend or no longer offer Quentry by providing at least three (3) months prior notice.
8.4 Your Individual User Account and all rights thereto are personal and non-transferable and shall terminate in case of death with immediate effect, unless specified otherwise in Your purchase contract.
8.5 Upon termination of Your Account, Brainlab shall be relieved of any obligations to grant access to Quentry and to provide any Services. Notwithstanding the foregoing, any stored Patient Data that has been once uploaded by You to Your Account will be deleted.
9.2 Brainlab will give You at least six (6) weeks' notice of any modification of the Terms by sending You an email. Revised Terms shall be deemed to have been approved by You, unless You indicate disapproval before the proposed date of entry into force of Revised Terms ("Effective Date"). Brainlab shall expressly draw Your attention to this consequent approval. Brainlab may also implement a mechanism for Your acceptance of Revised Terms, such as a click-through confirmation, a check-the-box confirmation or an acceptance button.
9.3 You acknowledge and agree that Your Individual User Account and Your continued use of Quentry is subject to Your acceptance of Revised Terms. If You disapprove or do not accept Revised Terms before the Effective Date, Your membership will terminate effective the end of the day prior to the Effective Date.
10. No Medical Advice
Brainlab is not a healthcare institution or medical facility and neither Brainlab nor Quentry provide any medical advice. You are solely responsible for all medical decisions, including the interpretation of any Patient Data, and any diagnosis, treatment or treatment plan, made by You as the result of the use of Quentry. You acknowledge that image capture, image processing and image display also depend on Your specific computer hardware environment and corresponding system settings which are beyond Brainlab's reasonable control. Brainlab does not warrant that the image representation through Quentry will be free from any hardware-based display errors such as image distortions, color deviations or poor contrast and brightness values. IT IS THE SOLE RESPONSIBILITY OF YOU AND ANY OTHER USER, PHYSICIAN OR MEDICAL PHYSICIST INVOLVED TO ANTICIPATE THE POSSIBILITY OF SUCH DISPLAY ERRORS IN INTERPRETING IMAGES VISUALIZED THROUGH QUENTRY.
11.1 You shall indemnify and hold harmless Brainlab from all actions, including claims, demands, suits, or proceedings made or brought against Brainlab by other users or third parties resulting from an infringement of their rights by User Data or Patient Data disclosed by You, or regarding the use of Quentry by You. You assume all reasonable attorneys' fees, costs, and expenses incurred due to an infringement of third party rights. All other rights, including damage claims by Brainlab shall remain unaffected. You may give prove that Brainlab incurred lesser charges than claims made.
11.2 In the event any User Data or Patient Data disclosed by You infringes any rights of any third party, You shall, at Your own expense, either obtain the right to use such data or render such data free of any infringement. In the event You infringe third party rights when using Quentry, You shall discontinue such use that violates these Terms or applicable law.
12. Limitation of Liability
12.1. Brainlab shall be liable only for damages (i) to the extent they have been caused by Brainlab’s negligent or willful breach of an essential obligation under these terms; liability for negligence in this respect shall be limited to forseeable damages; or (ii) to the extent they have been caused by gross negligence or intentional misconduct on Brainlab’s part. Essential obligations are those that enable the realization of the contractual relationship in the first place and on observance for which the parties may regularly trust. The foregoing shall apply for any and all claims, including but not limited to tort claims.
12.2. The limitation of Brainlab’s liability as set forth in 12.1. shall not apply to damages caused by Brainlab’s gross negligence or wilful misconduct, bodily injuries, compromised health or death or to any claims under the German product liability act.
12.3. You shall indemnify and hold harmless Brainlab from all actions, including claims, demands, suits, or proceedings made or brought against Brainlab by third parties resulting from an infringement of their rights by any of Your actions or omissions, including but not limited to the disclosure of user data or patient data. You assume all reasonable attorneys' fees, costs, and expenses incurred due to an infringement of third party rights. All other rights, including but not limited to damage claims by Brainlab, shall remain unaffected.
12.4 QUENTRY IS NOT A PLATFORM DEVELOPED FOR DATA BACKUP AND DOES NOT SUBSTITUTE ANY BACKUP OR STORAGE SYSTEM FOR ELECTRONIC DATA. IT IS WITHIN YOUR RESPONSIBILITY TO KEEP BACKUPS OF ANY AND ALL OF YOUR DATA INCLUDING PATIENT DATA. IN NO EVENT SHALL BRAINLAB BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY DATA.
12.5 UPON TERMINATION OR INACTIVATION OF YOUR MEMBERSHIP, EITHER BY YOU OR BRAINLAB, PATIENT DATA THAT HAS BEEN ONCE TRANSFERRED BY YOU WILL BE PERMANENTLY AND IRREVOCABLY DELETED. IN SUCH EVENT, BRAINLAB SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE OF DATA.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, BRAINLAB MAKES NO WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE OPERATION, CAPACITY, SPEED, FUNCTIONALITY, QUALIFICATIONS OR CAPABILITIES OF QUENTRY OR ANY GOODS OR PERSONNEL RESOURCES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.
BRAINLAB DOES NOT WARRANT ANY PARTICULAR RESULTS THAT MAY BE OBTAINED BY THE USE OF QUENTRY OR THAT THE SERVICES OR ASSOCIATED SYSTEMS WILL OPERATE IN AN ERROR-FREE OR UNINTERRUPTED MANNER, OR IN COMBINATION WITH THIRD PARTY PRODUCTS.
14. Data Protection
14.2 If Brainlab is required to disclose any data provided by or belonging to You by a court order, an order of any public authority, or by law, Brainlab shall give immediate notice thereof to You. In the event that Brainlab is required to disclose data to which Brainlab has no access rights, You shall assist and cooperate with Brainlab in order to follow and comply with any of such requirements.
14.3 If You practice medicine in the USA or if You change the country where You practice medicine to the USA at a later time, You are required to accept the Business Associate Agreement attached as Exhibit 2: Business Associate Agreement ("BAA")
. Any of Your protected health information, as such term is defined in the Health Insurance Portability and Accountability Act (HIPAA), shall only be used or disclosed as set forth in the BAA. If You are unsure whether the BAA is applicable for You, You must contact Brainlab.
15. Compliance with Law
Quentry is provided solely for lawful purposes and use. Without limiting the other Terms, You agree to be solely responsible to comply with all laws, statutes, ordinances and/or regulations (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, false advertising, privacy and data protection, and publicity) (collectively, "Laws") applicable to You and Your business and Your use of the Services. You will not directly or indirectly ship, transfer, export or transmit the Services into any country or permit or authorize use by any person in any manner prohibited by export laws, restrictions, or regulations of any applicable jurisdiction. The parties agree that Brainlab may in its sole discretion make changes to any of the Services from time to time as may be reasonably necessary or appropriate for Brainlab to comply with applicable Laws.
16.1 By providing us with Your email address, You agree to receive all required notices electronically by using that email address. It is Your responsibility to update or change Your email address as appropriate.
16.2 Notices to You will be provided by email or as notification within Quentry.
16.3 Unless otherwise stated, Your notices to Brainlab shall be send by email to firstname.lastname@example.org
17. General Provisions
17.1 This Agreement shall be governed by the laws of the Federal Republic of Germany excluding conflict of laws provisions.
17.2 Exclusive place of jurisdiction shall be Munich, Germany.
17.3 You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Brainlab. Notwithstanding the foregoing, to the extent permitted by law, Brainlab may assign rights and obligations relating to Quentry in whole or in part, without Your consent , to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of You. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
17.4 In case any of the provisions of these Terms shall be held to be invalid or unenforceable in any respect, the remaining provisions shall remain in full force and effect. The invalid clause shall be replaced by such valid clause which comes closest to the commercial intention of the parties.
Exhibit 1: SFDC Service Agreement
LAST UPDATED ON April 5, 2011
"AppExchange" means the online directory of on-demand applications that work with the Service, located at http://www.appexchange.com or at any successor websites.
"Platform" means the online, Web-based platform service provided by SFDC to Reseller in connection with
Reseller"s provision of the Reseller Application to You.
"Reseller" means Brainlab.
"Reseller" Application means Quentry.
"SFDC Service" means the online, Web-based application and platform service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components but excluding
"SFDC" means salesforce.com.
"Users" means Your employees, representatives, consultants, contractors or agents who are authorized to use the Service subject to the terms of this SFDC Service Agreement as a result of a subscription to the Reseller Application having been purchased for such User, and have been supplied user identifications and passwords by You (or by Salesforce.com or Reseller at Your request).
"You" and "Your" means the customer entity which has contracted to purchase subscriptions to use the Reseller Application subject to the conditions of this SFDC Service Agreement, together with any other terms required by Reseller.
"Your Data" means all electronic data or information submitted by You as and to the extent it resides in the Service.
1. Use of Service.
(a) Each User subscription to the Reseller Application shall entitle one User to use the Service via the Reseller Application, subject to the terms of this SFDC Service Agreement, together with any other terms required by Reseller. User subscriptions cannot be shared or used by more than one User (but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment with You or otherwise changed job status or function and no longer require use of the Service). For clarity, Your subscription to use the Platform hereunder does not include a subscription to use the SFDC Service or to use it in connection with applications other than the Reseller Application. If You wish to use the SFDC Service or any of its functionalities or services, to use another application other than the Reseller Application, or to create or use additional custom objects beyond those which appear in the Reseller Application in the form that it has been provided to You by Your Reseller, visit www.salesforce.com to contract directly with SFDC for such services. In the event Your access to the Reseller Application provides You with access to the SFDC Service generally or access to any SFDC Service functionality within it that is in excess to the functionality described in the Reseller Application"s user guide, and You have not separately subscribed under a written contract with SFDC for such access, then You agree to not access and use such functionality, and You agree that Your use of such functionality, Your use of applications other than the Reseller Application, or Your creation or use of additional custom objects in the Reseller Application beyond that which appears in the Reseller Application in the form that it has been provided to You by your Reseller, would be a material breach of this Agreement.
(b) Notwithstanding any access You may have to the Platform or the SFDC Service via the Reseller Application, Reseller is the sole provider of the Reseller Application and You are entering into a contractual relationship solely with Reseller. In the event that Reseller ceases operations or otherwise ceases or fails to provide the Reseller Application, SFDC has no obligation to provide the Reseller Application or to refund You any fees paid by You to Reseller.
(c) You (i) are responsible for all activities occurring under Your User accounts; (ii) are responsible for the content of all Your Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the SFDC Service, and shall notify Reseller or Salesforce.com promptly of any such unauthorized use You become aware of; and (iv) shall comply with all applicable local, state, federal and foreign laws and regulations in using the Platform and the SFDC Service.
(d) You shall use the Platform and the SFDC Service solely for Your internal business purposes and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform or the SFDC Service available to any third party, other than to Users or as otherwise contemplated by this SFDC Service Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
(iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Platform or the SFDC Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Platform or the SFDC Service or its related systems or networks.
(e) You shall not (i) modify, copy or create derivative works based on the Platform or the SFDC Service; (ii) frame or mirror any content forming part of the Platform or the SFDC Service, other than on Your own intranets or otherwise for Your own internal business purposes; (iii) reverse engineer the Platform or the SFDC Service; or (iv) access the Platform or the SFDC Service in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Platform or the SFDC Service.
2. Third-Party Providers.
Reseller and other third-party providers, some of which may be listed on pages within SFDC"s website and including providers of AppExchange applications, offer products and services related to the Platform, the SFDC Service, and/or the Reseller Application, including implementation, customization and other consulting services related to customers" use of the Platform and/or the SFDC Service, and applications (both offline and online) that interoperate with the Platform, SFDC Service, and/or the Reseller Application, such as by exchanging data with the Platform, the SFDC Service, and/or the Reseller Application, or by offering additional functionality within the user interface of the Platform, the SFDC Service, and/or the Reseller Application through use of the Platform and/or SFDC Service's application programming interface. SFDC does not warrant any such third-party providers or any of their products or services, including but not limited to the Reseller Application or any other product or service of Reseller, whether or not such products or services are designated by SFDC as "certified," "validated" or otherwise. Any exchange of data or other interaction between You and a third-party provider, including but not limited to the Reseller Application, and any purchase by You of any product or service offered by such third-party provider, including but not limited to the Reseller Application, is solely between You and such third-party provider. In addition, from time to time, certain additional functionality (not defined as part of the Platform or SFDC Service) may be offered by SFDC or Reseller to You, for an additional fee, on a pass-through or OEM basis pursuant to terms specified by the licensor and agreed to by You in connection with a separate purchase by You of such additional functionality. Your use of any such additional functionality shall be governed by such terms, which shall prevail in the event of any inconsistency with the terms of this SFDC Service Agreement.
3. Proprietary Rights.
Subject to the limited rights expressly granted hereunder, SFDC reserves all rights, title and interest in and to the Platform and the SFDC Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth in this SFDC Service Agreement. The Platform and the SFDC Service is deemed SFDC confidential information, and You will not use it or disclose it to any third party except as permitted in this SFDC Service Agreement.
4. Compelled Disclosure.
If either You or SFDC is compelled by law to disclose confidential information of the other party, it shall provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party"s cost, if the other party wishes to contest the disclosure.
You agree that SFDC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any SFDC products or services any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the operation of the Platform and/or the SFDC Service.
Your use of the Platform and the SFDC Service may be immediately terminated and/or suspended upon notice due to (a) a breach of the terms of this SFDC Service Agreement by You or any User, (b) the termination or expiration of Reseller"s agreement with SFDC pursuant to which Reseller is providing the Platform as part of the Reseller Application to You, and/or (c) a breach by Reseller of its obligations to SFDC with respect to the subscriptions it is providing to You in connection with this SFDC Service Agreement.
7. Subscriptions Non-Cancelable.
Subscriptions for the Platform and the SFDC Service are non-cancelable during a subscription term, unless otherwise specified in Your agreement with Reseller.
8. Data Storage.
The Platform and SFDC Service includes a certain cumulative amount of storage per User subscription for no additional charge. Contact Your Reseller for additional information. Additional storage may be available for purchase from the Reseller.
9. No Warranty.
SALESFORCE.COM MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SALESFORCE.COM DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO RESELLER APPLICATION AND THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
10. No Liability.
IN NO EVENT SHALL SFDC HAVE ANY LIABILITY TO YOU OR ANY USER FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Further Contact.
SFDC may contact You regarding new SFDC service features and offerings.
12. Google Programs and Services.
Platform or SFDC Service features that interoperate with Google programs and services depend on the continuing availability of applicable Google application programming interfaces ("APIs") and programs for use with the Platform and the SFDC Service. If Google Inc. ceases to make such APIs and/or programs available on reasonable terms to SFDC, SFDC may cease providing such features without entitling You or Reseller to any refund, credit, or other compensation.
13. Third Party Beneficiary.
SFDC shall be a third party beneficiary to the agreement between You and Reseller solely as it relates to this SFDC Service Agreement.
Contacts: If you have any questions, concerns, or suggestions regarding this document, please contact us at email@example.com.
Exhibit 2: Quentry.com Business Associate Agreement
LAST UPDATED ON April 5, 2011
THIS Business Associate Agreement is made and entered into by and between you, as a user of Quentry ("You", "Your" or "Covered Entity") and Brainlab AG ("Brainlab" or "Business Associate") ("BAA"). By accepting this BAA, You agree to the terms of this BAA.
The parties acknowledge and agree that You are a "Covered Entity" and Brainlab is a "Business Associate" of You when Business Associate uses and discloses Protected Health Information received from or on behalf of You ("PHI") in connection with performing the Services for or on behalf of You.
Capitalized terms used herein without definition in this BAA shall have the respective meanings assigned to such terms by the administrative simplification section of the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations as amended by the Health Information Technology for Economic and Clinical Health Act and its implementing regulations ("HITECH") (collectively, "HIPAA").
The parties acknowledge and agree that HITECH purports to impose new requirements with respect to privacy, security and breach notification and contemplates that such requirements shall be implemented by regulations to be adopted by the United Stated Department of Health and Human Services (HHS). The HITECH provisions applicable to Business Associates will be collectively referred to as the "HITECH BA Provisions". The applicable provisions of HITECH and the HITECH BA Provisions are hereby incorporated by reference into this BAA as if set forth in this BAA in their entirety.
The parties hereto desire to enter into this BAA to comply with the provisions of HIPAA.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
The provisions of this BAA shall control with respect to PHI that Business Associate receives from or on behalf of Covered Entity.
2. Obligations of Business Associate To Maintain the Security and Confidentiality of PHI:
Business Associate shall maintain the confidentiality and security of such PHI as required of Business Associate by applicable laws and regulations, including HIPAA. Business Associate covenants and agrees to the following:
Business Associate shall use appropriate internal safeguards to prevent the use or disclosure of PHI for purposes other than those permitted in Section 3 of this BAA. Business Associate shall implement administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of electronic PHI, as required by HIPAA.
(a) If Business Associate becomes aware of a use or disclosure of PHI in violation of this BAA by Business Associate or by a third party to which Business Associate disclosed PHI, Business Associate shall report any such use or disclosure to Covered Entity without unreasonable delay.
(b) Business Associate shall report any Security Incident involving PHI of which it becomes aware in the following manner: (i) any actual, successful Security Incident will be reported to Covered Entity in writing without unreasonable delay [and if practicable within thirty (30) business days], and (ii) any attempted, unsuccessful Security Incident, of which Business Associate becomes aware and of which involves Covered Entity PHI, will be reported to Covered Entity orally or in writing on a reasonable basis, as requested by Covered Entity. If the HIPAA security regulations are amended to remove the requirement to report unsuccessful attempts at unauthorized access, the requirement hereunder to report such unsuccessful attempts will no longer apply as of the effective date of the amendment.
(c) Business Associate shall, following the discovery of a Breach of Unsecured PHI, notify the Covered Entity of such Breach in accordance with 45 C.F.R. § 164.410 without unreasonable delay, but in no case later than sixty (60) days after discovery of the Breach.
3. Permissible Uses and Disclosures of PHI.
3.1 Use and Disclosure by Business Associate Generally. Business Associate may use and/or disclose PHI received from or on behalf of Covered Entity, as permitted or required to perform the Services, by this BAA, and as Required by Law, but it shall not otherwise use or disclose any PHI. Business Associate shall not use or disclose PHI in a manner that would be in violation of HIPAA if done by Covered Entity. Business Associate is permitted to use or disclose PHI as set forth below:
(a) Business Associate may use PHI internally for its proper management and administrative services or to carry out its legal responsibilities, and as authorized by Covered Entity to perform the Services and this BAA;
(b) Business Associate may disclose PHI to a third party for Business Associate's proper management and administration or to carry out its legal responsibilities, provided that the disclosure is Required by Law or Business Associate obtains reasonable assurances from the third party to whom the PHI is to be disclosed that the third party will (1) protect the confidentiality of the PHI, (2) only use or further disclose the PHI as Required by Law or for the purpose for which the PHI was disclosed to the third party and (3) notify Business Associate of any instances of which the person is aware in which the confidentiality of the PHI has been breached;
(c) Business Associate may use PHI to provide Data Aggregation services as defined by HIPAA; and
(d) Business Associate may de-identify PHI, consistent with applicable HIPAA requirements.
3.2 Disclosure to Third Parties. Business Associate may disclose PHI of Covered Entity that is created or received by Business Associate on behalf of Covered Entity under this BAA to agents and subcontractors Business Associate retains to assist it in the performance of the Services to Covered Entity if and only if all such agents and subcontractors agree to the same or similar requirements and restrictions with respect to the PHI as are set forth herein. Business Associate shall ensure that any such agent or subcontractor to whom it discloses electronic PHI agrees to implement reasonable and appropriate safeguards to protect such information in compliance with HIPAA.
4. Patient Rights With Respect To PHI.
4.1 Access to Information. Within fifteen (15) business days of a written request by Covered Entity for access to PHI about an Individual contained in any Designated Record Set of Covered Entity maintained by Business Associate, if any, Business Associate shall make available to Covered Entity such PHI for so long as Business Associate maintains such information in the Designated Record Set. If Business Associate receives a request for access to PHI directly from an Individual, Business Associate shall direct the Individual to contact Covered Entity directly.
4.2 Availability of PHI for Amendment. Within fifteen (15) business days of receipt of a written request from Covered Entity for the amendment of an Individual's PHI contained in any Designated Record Set of Covered Entity maintained by Business Associate, if any, Business Associate shall provide such information to Covered Entity for amendment and incorporate any such amendments in the PHI (for so long as Business Associate maintains such information in the Designated Record Set) as required by 45 C.F.R. §164.526. If Business Associate receives a request for amendment to PHI directly from an Individual, Business Associate shall direct the Individual to contact Covered Entity directly.
4.3 Accounting of Disclosures. Within fifteen (15) business days of written notice by Covered Entity to Business Associate that it has received a request for an accounting of disclosures of PHI (other than disclosures to which an exception to the accounting requirement applies under HIPAA), Business Associate shall make available to Covered Entity such information as is in Business Associate's possession and is required for Covered Entity to make the accounting required by 45 C.F.R. §164.528.
5. Availability of Books and Records.
Business Associate shall make Business Associate's internal practices, books and records relating to the use and disclosure of PHI received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity, available to the Secretary of Health and Human Services for purposes of determining and facilitating Business Associate's and Covered Entity's compliance with HIPAA.
6. Obligations of Covered Entity.
6.1 Covered Entity shall not cause Business Associate to use or disclose PHI in any manner that would not be permissible under HIPAA if done directly by Covered Entity.
6.2 Covered Entity represents that, to the extent Covered Entity provides PHI to Business Associate, such PHI is the minimum necessary PHI for the accomplishment of Business Associate's purpose.
6.3 Covered Entity represents that, to the extent Covered Entity provides PHI to Business Associate, Covered Entity has obtained the consents, authorizations and/or other forms of legal permission required under HIPAA and other applicable law.
6.4 Covered Entity shall implement reasonable and appropriate measures to ensure that PHI and EPHI are disclosed, provided or transmitted to Business Associate only in a secure manner including through the use of a technology or methodology specified by the Secretary in the guidance issued pursuant to HITECH (including encryption or destruction), or if such guidance is not issued within the time specified in HITECH, by a technology standard that renders PHI unusable, unreadable, or indecipherable to unauthorized individuals.
6.5 Covered Entity shall indemnify and hold Business Associate, its affiliates and subsidiaries, and their respective directors, officers, employees and subcontractors harmless from and against any damages, costs, liabilities, expenses and settlement amounts incurred in connection with a breach by Covered Entity of this Section 6.
7. Termination and Expiration of BAA.
7.1 Term. The term of this BAA shall be effective as of the date when Your membership for Quentry is activated by Business Associate ("Effective Date"), and shall terminate upon termination of Your membership.
7.2 Termination for Failure to Comply. Covered Entity may terminate the Services immediately upon failure of Business Associate to cure a material breach of this BAA within 30 days of receipt of written notice to Business Associate if Covered Entity determines that Business Associate has violated a material term of this BAA. This BAA may be terminated by Business Associate upon 30 days written notice to the Covered Entity, if Business Associate believes that the requirements of any law, legislation, consent decree, judicial action, governmental regulation or agency opinion, enacted, issued, or otherwise effective after the Effective Date and applicable to the PHI or to this BAA, cannot be met by Business Associate in a commercially reasonable manner and without significant additional expense.
7.3 Return of PHI upon Termination or Expiration. Upon termination or expiration of this BAA, Business Associate shall destroy all PHI received from, created or received by Business Associate on behalf of, Covered Entity to Covered Entity. If Business Associate reasonably determines that such destruction is not feasible, Business Associate will extend the protections of this BAA to the PHI and limit further uses and disclosures to those purposes that make the return or destruction of such PHI infeasible.
7.4 Binding Effect. Except as otherwise provided herein, the terms and conditions of the BAA shall remain in full force and effect following termination of the BAA.
8.1 Amendment. Upon enactment of any applicable law or regulation affecting the use or disclosure of PHI, or the publication of any decision of an applicable, or the publication of any interpretative policy or opinion of any government agency charged with the enforcement of any such law or regulation, Covered Entity, by written notice to Business Associate, may request amendment of this BAA in such manner as Covered Entity reasonably determines necessary to comply with such law or regulation to the extent such enactment is directly applicable and enforceable against Business Associate; provided, however, that to the extent such amendment causes Business Associate to incur a material increase in the costs associated with performance of the Services, the parties shall meet and negotiate in good faith to make any adjustments to the fees for the Services. In the event the parties, after good faith negotiations, cannot reach agreement regarding the amount of such adjustments, either party may terminate the Services by giving the other party at least seven (7) days prior written notice of its intent to terminate.
8.2 Entire Agreement. This BAA is the entire and sole understanding of the parties hereto with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, transactions, or communication, whether oral, or written, including electronic form. If any provision or part thereof is found to be invalid, the remaining provisions shall remain in full force and effect. Any other terms or conditions contained in any other document with respect to PHI shall not apply.
8.3 Successors and Assigns. This BAA will inure to the benefit of and be finding upon the successors and assigns of the parties. This BAA is not assignable by any party without the prior written consent of the other party. Notwithstanding the foregoing, Business Associate may assign this BAA in its entirety, without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this BAA as of the Effective Date. By accepting this BAA without raising any objection, You signify Your agreement with and understanding of the terms set forth herein.
Contacts: If you have any questions, concerns, or suggestions regarding this BAA, please contact us at firstname.lastname@example.org.