SOFTWARE LICENCE (EULA) ‘CLINICGRAM’. VERSION 1.1
The website hosted at URL www.clinicgram.com (the “Website”) and the computer application commercialized under the brand name ‘CLINICGRAM’ (the “App”) offer solutions to support the management by professionals and healthcare institutions
The owner of the Website and the App is the entity SKILLED SKIN, S.L., with registered address at C/ Venezuela, 76, floor 2, 08019 Barcelona, with CIF number B-67360438, email contact [email protected] and registered in the Mercantile Registry of Barcelona at volume 46743, folio 10 and sheet number B-529477 and whose activity is authorized by AEAT under the code number 845/1 (“SKILLED SKIN”).
These terms and conditions (the “Contract”) regulate the access and use of the Web/App by its users, who must be of legal age and professionals in the health field (the “Licensee”). Access to and use of the Web/App implies full acceptance of the Contract. Consequently, the Licensee must read carefully and in full the following CLAUSES of the Contract when is intended to use the Web/App
1. ACCESS AND USE
1.1. Registry and functionalities
To access and use the App, the Licensee must download it from the “Google Play”, “Apple Store” platforms, as well as from any other SKILLED SKIN states, and register as a user following the procedures provided for that purpose. Also, to access and use the Website, the Licensee must register through the same credentials.
The functionality of artificial intelligence that is accessible in the toolbars called “Visualization”, “AI Tools” and “Draw Tools”, can only be used for issues related to health research and never in clinical practice. This functionality includes the (i) calculation of perimeter and area, (ii) the determination of the percentages of tissue types, (iii) the calculation of depth, (iv) the calculation of edge type and (v) any other type calculation that is accessible and run from the mentioned tools.
1.2. Licence to use
SKILLED SKIN grants the Licensee, who accepts, a non-exclusive and non-transferable licence to access and use the Website/App, in accordance with the provisions of the Contract.
1.3. Licensee Obligations
The licence to use granted by SKILLED SKIN to the Licensee is expressly conditioned on the fulfilment of the following obligations by the Licensee:
a) Access to Website/App through the credentials granted by SKILLED SKIN.
b) Use the Website/App in accordance with the Contract’s provisions and laws in force in the framework of the Licensee’s professional activity, especially in relation to the legitimacy of capturing images of their patients with devices and its further processing (including the ability to carry out automated decisions and profile evaluations).
c) Guarantee the suitability, compatibility security and disinfection of the equipment, devices and/or terminals that have access to the Website/App.
1.4. Licensee Prohibitions
The Licensee, in no case, may:
a) Make copies of the Website/App not authorized by SKILLED SKIN.
b) Sell, rent, lease, charge for and/or transfer the software of the Website/App in any way, except in cases where this is expressly permitted in the Contract and/or current legislation.
c) Reveal Website/App’s login credentials to third parties.
d) Decompile, disassemble and/or reverse engineer the software of the Website/App or, in any other way, obtain the source code, or take any other action undermining SKILLED SKIN’s intellectual or industrial property rights.
e) Damage, disable and/or overload the software, of the Website/App or prevent, in any way, its normal use and operation.
f) Develop software originating from or any other software program based on the software of the Website/App or Confidential Information, except with SKILLED SKIN’s written consent.
g) Facilitate, disclose, divulge, make available and/or allow the use of the Website/App to third parties, without SKILLED SKIN’s prior written consent.
h) Modify and/or alter the software of the Website/App without SKILLED SKIN’s prior written consent, except in cases where it is expressly permitted under the Contract and/or current legislation.
i) Host on the Website/App, or transmit through it, content that is illegal and / or contrary to the rights of third parties.
In the event of breach by the Licensee of the Contract and/or current regulations, without prior notice SKILLED SKIN will suspend or interrupt Website/App access or use and, without prejudice of the right to request the Licensee for compensation for damages matching SKILLED SKIN.
The Website/App cannot and should not be used by the Licensee to assess, diagnose and/or decide on the treatment to be administered to their patients because the Website/App do not recommend or validate medical diagnoses or the use of medications. Nor can and should it be used by Licensee to make decisions whose impact could cause the death or irreversible deterioration of a person’s state of health, a serious deterioration of a person’s state of health or a surgical intervention.
The Licensee shall be solely liable for complying with the requirements required for the exercise of their profession and for applying their professional criteria when they use the information obtained from the Website/App for the care and service of patients. In any case, this information should not be considered a substitute for the aforementioned criteria.
The Licensee must apply the information obtained through the Website/App in a critical sense based on their experience, the characteristics of each patient and the specific healthcare environment.
SKILLED SKIN will not be liable, under any circumstances, in any of the following cases:
a) For any incident, suspension, interruption and/or breakdown of the Licensee’s access net that prevent the availability and/or continuity in access and/or use of the Website/App.
b) For any loss and/or damage, loss of profit, loss of data or operating time, of the use of the equipment or of the process, experienced directly or indirectly by the Licensee.
c) For the Licensee’s use of other software or hardware not compatible with the Website/App or for improper or unauthorized manipulation thereof.
d) For any violation of the regulations, third party rights or the terms of the Contract incurred by the Licensee and/or third parties in the access and/or use of the Website/App.
e) For the contents hosted and/or transmitted by the Licensee in the Website/App.
f) For the Licensee’s use of the information obtained through the Website/App or for any aspect of the care managed with the help of the information obtained through it.
For the purposes of the Contract, it is considered “Confidential Information” any information of an economic, financial, technical, commercial, strategic or other type, provided in any way by SKILLED SKIN to the Licensee or vice versa, that is, from the Licensee to SKILLED SKIN, as well as information related to the conception, structure and technical content of the software and the intrinsic know-how of the Website/App (except that, where appropriate, is not subject to confidentiality), and any other information and documentation provided by SKILLED SKIN to the Licensee under the Contract.
The Licensee recognizes that the Confidential Information is the exclusive property of SKILLED SKIN and/or its licensors and it is considered a professional secret; consequently, in relation to it, the Licensee agrees to:
a) Use it exclusively in accordance with the provisions of the Contract and no longer disclose it, directly or indirectly, to any third party without prior express written consent of SKILLED SKIN.
b) Have due diligence in order to implement the appropriate mechanisms to protect Confidential Information from any use or disclosure and, in particular, any unauthorized use or disclosure.
c) Assume responsibility and indemnify for any loss, damage and/or cost or expense, including potential legal defence costs, as a result of any fraudulent use and/or unauthorised use of Confidential Information.
3.2. The following will not be considered Confidential Information:
a) What is published before or that becomes public, unless it acquires this character because of a breach of the Contract.
b) That obtained from third parties without restrictions or that imply breach of the Contract.
c) That which is developed without implying a breach of the Contract.
4. PERSONAL DATA
SKILLED SKIN is the Data Controller of the personal data provided by the Licensee during the access and use of the Website/App and will process them with the purpose of licensing the Website/App and, where appropriate, sending electronic commercial communications about SKILLED SKIN products or services that may be of interest. The data will be kept for the legal term established by current regulations and will not be assigned to third parties except the Public Administration in the event provided for by current Law. The legal basis for processing data is contractual execution and therefore the Licensee must provide SKILLED SKIN with all data required since, otherwise, it could mean that SKILLED SKIN is unable to register the Licensee with the Website/App.
The Licensee may exercise its right of access to personal data, as well as request the rectification of inaccurate data or, where appropriate, its erasure when the data is no longer necessary for the purposes that it was collected. It may also request the limitation, portability and opposition of the processing of your data, in certain circumstances and for reasons related to its particular situation. The Licensee may exercise the aforementioned rights, under the terms and conditions set forth in current legislation, at SKILLED SKIN’s registered address or request it by email at [email protected] In the event that you do not receive a satisfactory answer or would like more information regarding any of these rights, you can visit the Spanish Agency for Data Protection (www.aepd.es – C/ Jorge Juan, 6 de Madrid).
Likewise, in the event that SKILLED SKIN has access to personal data owned by the Licensee to execute the Contract, the provisions of Annex I will apply.
The Licensee agree and are required to hold SKILLED SKIN harmless against any claim that may be filed (including any disciplinary proceedings filed by the Spanish Agency for Data Protection or replacing institution) for breach by the Licensee of current regulations in the matter of personal data protection and, especially, of the guarantees contained in this clause, agreeing to pay the amounts to which for penalty, fine, compensation, damages, and interests it may be obliged SKILLED SKIN to meet as a result of Licensee’s breach.
5. ASSIGNMENT OF RIGHTS
SKILLED SKIN may transfer all or some of its rights or obligations assumed under the Contract to any other entity linked to it. By virtue of said transfer, any reference to the assignor contained in the Contract shall be understood as a reference to the assignee entity.
The Contract and Annexes represent the only valid agreement in relation to the purpose of the Agreement and voids any other agreements previously reached, whether verbal and/or written.
The terms defined in the Annexes shall have the same meaning as those provided in the Contract. In the event that any conflict arises between the terms of the Contract and the Annexes, the terms of the Annexes will prevail.
If any of the Contract clauses were declared null or invalid, whether totally or partially, such nullity or invalidity will affect only said provision or the part of it that is null or invalid, and the Contract will remain valid in everything else, considering that such provision or the part of it is not affected. For these purposes, the Contract will only cease to be valid exclusively with respect to the null or invalid provision, and no other part or provision thereof will be annulled, invalidated, damaged or affected by such nullity or invalidity, unless, it being essential, it would affect the Contract in a comprehensive way.
If the Licensee has any doubts or questions regarding the Contract, the Licensee can contact SKILLED SKIN to the email [email protected]
7. APPLICABLE LAW AND COMPETENT JURISDICTION
The Contract will be governed and interpreted in accordance with the laws of Spain. For any dispute that may arise in relation to the interpretation and/or execution of the Contract, the parties, expressly waive any other jurisdiction that may apply to them, submitting to the jurisdiction of the Courts and Tribunals of the city of Barcelona, Spain.
ANNEX I. Personal data processing
SKILLED SKIN is authorized, in its capacity as Data Processing Manager, to process data on behalf of the Licensee, the personal data of its ownership necessary for the proper execution of the Contract. Specifically, processing to be carried out will be as follows:
X Others: Training, test and validation of Artificial Intelligence Models
2) Identification of the affected information
The Licensee will make available the information described below to SKILLED SKIN to be carried out for the execution of the Contract: user mail to access the App and the Website, identifier and clinical images of the patient and information on diagnosis and treatment.
3) SKILLED SKIN’s obligations
a) Use the personal data subject to processing, or those collected for inclusion, only for the purpose of the order and, in no case, for its own purposes.
b) Process personal data in accordance with the Licensee’s instructions. If SKILLED SKIN considers that any of the instructions violates the General Data Protection Regulation (“GDPR”) or any other provision regarding data protection of the European Union or Member States, SKILLED SKIN will immediately inform the Licensee.
c) Keep a written record of all categories of processing activities carried out on behalf of the Licensee that contain the requirements of GDPR article 30.2.
d) Do not communicate the data to third parties, unless it has the express authorization of the Licensee, in legally admissible cases.
SKILLED SKIN may communicate the data to data processing managers from the same manager, in accordance with the Licensee’s instructions. In this case, the Licensee will identify, in advance and in writing, the entity to which the data must be communicated, the data to be communicated and the security measures to be applied for the communication.
If SKILLED SKIN must transfer personal data to a third country or international organization, under applicable European Union or Member State laws, it will inform the Licensee of that legal requirement in advance, unless such Law prohibits it for important reasons of public interest.
e) In the event that it is necessary to subcontract certain services to other entities that involve the processing of personal data, SKILLED SKIN would notify the Licensee of the subcontracting, identifying the subcontractor. Subcontracting may be carried out if the Licensee does not express his opposition within five (5) calendar days.
The subcontractor, who also has the status of data processing manager, will also be obliged to fulfil the obligations set forth for the Data Processing Manager and instructions given by the Licensee. It is the responsibility of the Data Processing Manager to regulate the new relationship, so that the new data processing manager is subject to the same conditions (instructions, obligations, security measures, etc.) and with the same formal requirements as him, in relation to the proper processing of personal data and the guarantee of rights of affected persons. In the case of breach by the sub-manager, the manager will remain fully responsible to the administrator for compliance with the obligations.
f) Maintain the duty of secrecy regarding personal data to which they have had access under the Contract.
g) Ensure that persons authorized to process personal data expressly commit themselves to respect confidentiality and comply with corresponding security measures, for which they must be duly informed, and to keep available to the Licensee documentation accrediting compliance with said obligation.
h) Ensure necessary training in the protection of personal data of persons authorized to process personal data.
i) Where appropriate, assist the Licensee in the response to the exercise of the rights of access, rectification, deletion and opposition, limitation, portability of data and not be subject to automated individualized decisions (including profiling).
When those affected exercise the rights of access, rectification, deletion and opposition, limitation of processing, data portability and are not subject to automated individualized decisions, before SKILLED SKIN, the latter must communicate it by email at [email protected] The communication must be made immediately, together, where appropriate, with other information that may be relevant to resolve the request.
j) Notify the Licensee, without undue delay, and in any case before the maximum period of within seventy-two (72) hours and through its Security Manager, of violations of the security of personal data under their responsibility of which they have knowledge, together with all the relevant information for the documentation and communication of the incident.
Notification will not be necessary when it is unlikely that such a security breach constitutes a risk to the rights and freedoms of natural persons.
If available, the following information will be provided at a minimum:
(i) Description of the nature of the breach of the security of personal data, including, where possible, categories and approximate number of interested parties affected, and the categories and the approximate number of personal data records affected.
(ii) Name and contact details of the data protection office or other contact information where more information can be obtained.
(iii) Description of the possible consequences of the breach of personal data security.
(iv) Description of the measures taken or proposed to remedy the breach of the security of personal data, including, if appropriate, measures taken to mitigate possible negative effects.
If it is not possible to provide the information all at the same time, and to the extent that it is not, the information will be provided on a gradual basis without undue delay.
k) Where appropriate, support the Licensee in carrying out impact assessments related to data protection.
l) Where appropriate, provide support to the Licensee in carrying out prior consultations with the Control Authority.
m) Make available to the Licensee all information required to demonstrate compliance with its obligations, as well as for the performance of audits or inspections carried out by the manager or another auditor authorized by him.
n) Implement security measures, in accordance with the risk assessment carried out by the Licensee.
o) Where appropriate, designate a DPO and communicate their identity and contact information to the Licensee.
p) Destroy the data, once the Contract is over. Once destroyed, SKILLED SKIN must certify its destruction in writing and must deliver the certificate to the Licensee. However, SKILLED SKIN may keep a copy, with duly recorded data, as long as responsibilities may be derived from the execution of the Contract.
4) LICENSEE’s Obligations
a) Deliver to SKILLED SKIN the data referred to in Clause 2.
b) Where appropriate, carry out an Impact Assessment on the protection of personal data of the processing operations to be carried out by SKILLED SKIN.
c) Facilitate the right to information at the time of data collection.
d) Make prior inquiries as appropriate.
e) Ensure, prior to and throughout the processing, SKILLED SKIN’s compliance with the GDPR.
f) Supervise the processing, including conducting inspections and audits.
© SKILLED SKIN, S.L., 2020. All rights reserved.