Terms beginning with a capital letter have the meaning given to them in Article 2 below.
BOW MEDICAL, a simplified joint stock company (“société par action simplifiée”), registered with the Amiens Trade and Companies Register (“RCS d’Amiens”) under number 424 281 392, with a share capital of €101,108.00, whose registered office is at 43 Avenue d’Italie 80090 Amiens, creates and develops software for critical care, for which it holds intellectual property rights, including marketing rights (“BOW MEDICAL”).
The Client wants (i) to use, on its own behalf as a healthcare professional, or (ii) to enable professionals in its healthcare establishment and/or private practice, to use BOW MEDICAL software.
To this end,
- the Client has entered into a separate agreement with BOW MEDICAL to govern the provision of BOW MEDICAL Software;
Terms beginning with a capital letter have the meaning given below:
- “Access Code” refers to the unique, personal and confidential identifier and password allocated to the User, enabling access to and use of his/her User Account, once the Contractual Documentation has been accepted;
- “Agreement” means the contractual documentation in force between BOW MEDICAL and the Client, including terms and conditions of services and purchase orders, governing the license of BOW MEDICAL Software and the related services (installation, configuration, corrective and adaptative maintenance, migration and reversibility of Data);
- “BOW MEDICAL Software” means the software solutions for critical care and their interoperability, i.e. software development (source code, object code) and non-software development (content, graphic charter, etc.), published by BOW MEDICAL and licensed to the Client to be used by the User;
- “Contractual Documentation” means the contractual documents in force between the BOW MEDICAL and the User and detailed in Article 4 hereof;
- “Client” means the healthcare professional (private practice), the legal structure having several healthcare professionals or the healthcare facility within which the User carries out its activity, contractually bound to BOW MEDICAL by the signature of the Agreement;
- “Data” means any data and information relating to the User’s patients, entered and/or loaded by the User on the BOW MEDICAL Software and/or resulting from the use of the BOW MEDICAL Software, including any Health Data;
- “Documentation” means the documentation for use of BOW MEDICAL Software made available to the User by BOW MEDICAL;
- “Health Data” means Personal Data related to the physical and/or mental health of a patient of a User, including any information related to the provision of health care services;
- “Parties” mean collectively BOW MEDICAL and the User and individually BOW MEDICAL or the User;
- “Personal Data” means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to the physical, physiological, mental, economic, cultural or social identity of that natural person;
- “User Account” refers to the User’s personal connection account enabling him/her to access and use BOW MEDICAL Software;
- “User” means any natural person – a healthcare professional – authorised by the Client to access and use the BOW MEDICAL Software in compliance with the ToU.
The purpose of the ToU is to define the conditions of use of BOW MEDICAL Software by the User.
Upon creation of his/her User Account, each User (i) acknowledges having read the ToU in particular and the Contractual Documentation in general, (ii) agrees to fully comply with them throughout his/her use and (iii) acknowledges that the Contractual Documentation constitutes a binding contractual agreement between the User and BOW MEDICAL.
- Contractual Documentation
- Prevalence order
In the event of any contradiction between the Contractual Documentation, these ToU shall prevail.
The ToU take precedence over any conditions of purchase or any special conditions that the User may invoke.
- Scope of the ToU
The User acknowledges that the services related to the provision of BOW MEDICAL Software (installation, configuration, corrective and adaptive maintenance, migration and reversibility of Data) are not governed by the ToU and fall under the Agreement.
Therefore, for any question regarding the installation, configuration, corrective or adaptive maintenance, migration and reversibility of Data, we request the User to contact the Client or BOW MEDICAL by email at email@example.com.
- Amendment of the ToU
BOW MEDICAL reserves the right to amend the ToU in particular and the Contractual Documentation in general at any time, with automatic and immediate effect for the future. Therefore, we recommended regularly reviewing the Contractual Documentation to be aware of any new version.
In this case, BOW MEDICAL shall communicate the new Contractual Documentation by the means it deems most appropriate (i) to the User or (ii) to the Client, which is responsible for informing the User thereof, so that the User may accept them. In any event, the current version of the ToU is available online here: www.bowmedical.com.
If the User does not agree with all or part of the Contractual Documentation or with any change or adaptation made to the Contractual Documentation, the User shall immediately cease all use of BOW MEDICAL Software.
- Access to BOW MEDICAL Software
- Acceptance of the ToU
The User may access BOW MEDICAL Software only after (i) full and unconditional acceptance of the Contractual Documentation, and (ii) creation of his/her User Account.
The creation of a User Account and/or use of any BOW MEDICAL Software implies full acceptance of the Contractual Documentation.
If the User does not agree with all or part of the Contractual Documentation, the User must immediately cease all use of his/her User Account and, more generally, BOW MEDICAL Software.
If the User does not comply with the ToU, BOW MEDICAL reserves the right to, at any time, suspend and/or permanently forbid access to the User Account and to BOW MEDICAL Software, in accordance with Article 6.5.
- User Account creation
To access BOW MEDICAL Software, the User shall create a User Account; the User shall receive a user ID and define a password enabling the User to authenticate to log in.
The User acknowledges that the Access Codes and User Account (i) are strictly personal, non-transferable, confidential, (ii) are used under the User’s sole responsibility and (iii) cannot, under any circumstances, be shared with or transmitted to other Users and/or third parties. In any case, the User is solely responsible for maintaining the confidentiality and use of Access Codes and User Account.
BOW MEDICAL recommends not to use a password that has already been used for another service than the User Account and to change the password regularly. The password can be changed at any time by the User from his/her User Account.
BOW MEDICAL reserves the right, at any time, to:
- change the technical conditions related to the confidentiality and protection of Access Codes and replace them with any other technology which BOW MEDICAL considers appropriate;
- set up within the User Account a mechanism for reiterating the identification of the User, who will be required to re-enter his/her Access Codes.
- BOW MEDICAL Software license
- Terms of the BOW MEDICAL Software license
BOW MEDICAL grants to Users a limited, personal, non-transferable, non-sub-licensable and non-exclusive right to use the BOW MEDICAL Software, only for professional internal use, within the limits of the Contractual Documentation and any specific limitations negotiated between BOW MEDICAL and the Client.
This license is granted for France and for the duration of the contractual relationship (e.g. salaried employment or private practice) between the User and the Client.
No transfer of ownership occurs pursuant to the Contractual Documentation, and as such, the intellectual property rights on BOW MEDICAL Software remain the sole and exclusive property of BOW MEDICAL.
- Disclaimer of the BOW MEDICAL warranties
BOW MEDICAL Software is provided “as is”, without any warranty other than those expressly provided in the ToU.
In particular, BOW MEDICAL does not guarantee that BOW MEDICAL Software is error-free, that it will always be available and accessible in an uninterrupted manner or that it is suitable for any particular need or use, whether expected or not, of the User.
In particular, BOW MEDICAL reserves the right to temporarily suspend access to BOW MEDICAL Software in order to carry out maintenance operations or updates to BOW MEDICAL Software.
- Prohibited behaviour
It is strictly forbidden for the User to:
- use BOW MEDICAL Software in any way whatsoever, for any purpose whatsoever – in particular for profit or commercial purposes – which does not fall within the scope of the ToU;
- sell, lease, lend, assign, transfer, in any manner whatsoever, all or part of the rights to use BOW MEDICAL Software, including Access Codes;
- use BOW MEDICAL Software in connection with and/or for the purpose of carrying out illegal activities directly or indirectly;
- commit any act directly or indirectly likely to interfere with or negatively impact BOW MEDICAL Software and/or the business of BOW MEDICAL;
- copy, reproduce, modify, adapt, translate, publish, download, transmit, distribute, sublicense, sell, reverse engineer and/or create derivative works of BOW MEDICAL Software;
- configure BOW MEDICAL Software outside the scopes authorised by BOW MEDICAL;
- reverse engineer, disassemble, decompile or otherwise attempt to discover the source code and/or structure of all or part of the BOW MEDICAL Software (except as expressly provided by law; in this case, the User shall issue a written request for disclosure to BOW MEDICAL and may undertake any reverse engineering only in the absence of response from BOW MEDICAL more than 45 working days after receipt of the written request from the User);
- develop, in any way, a platform, a software solution, an application or any other type of service that would attack, negatively impact, interfere with or compete with BOW MEDICAL Software;
- use data mining, robots or other similar tools to collect and extract all or part of BOW MEDICAL Software;
- remove or alter any trademark, logo, slogan, copyright, proprietary or confidentiality notice, symbol, etc. present on BOW MEDICAL Software and/or any imprint thereof.
The User therefore undertakes to:
- take all reasonable measures necessary to prevent all or part of the above actions by any third party;
- promptly inform BOW MEDICAL of any unauthorised use of which it is aware or any breach of security of which it is aware by sending an e-mail to firstname.lastname@example.org.
- Utilisation of the Data on the BOW MEDICAL Software
The User is entirely and solely responsible for the Data that he/she enters and/or processes on BOW MEDICAL Software. He/she must, therefore, ensure that he/she complies with the applicable regulations and in particular does not in any way infringe the rights of interested parties or third parties.
As BOW MEDICAL Software is installed on the Client’s site (“on premise”), the User acknowledges that BOW MEDICAL has no access whatsoever to the Data and in particular to the Health Data.
Regarding BOW MEDICAL Software [to be completed] accessible in “Saas” mode, the User acknowledges that no Personal Data of patients of the User, including no Health Data, is processed by BOW MEDICAL Software [to be completed].
As a result, BOW MEDICAL shall not be liable, under any circumstances, in relation to the entry and use of Data on BOW MEDICAL Software.
- Suspension or termination of BOW MEDICAL Software’s license
In the event of cessation of the Agreement, unless terminated by BOW MEDICAL in case of a contractual breach of the Client, the User shall be entitled to continue to use BOW MEDICAL Software but shall not benefit from any related services (corrective maintenance, updates, specific developments, reversibility, etc.).
In case of breach of the ToU, BOW MEDICAL reserves the right to suspend the User’s access to BOW MEDICAL Software and/or terminate the ToU i.e. a permanent prohibition to access BOW MEDICAL Software, depending on the seriousness of the breach and after formal notice to the User by BOW MEDICAL to cease the misconduct within thirty (30) days.
- Security of BOW MEDICAL Software
BOW MEDICAL Software constitutes an automated data processing system. Any fraudulent access to the latter is prohibited and punishable by law.
If a breach of security is detected, BOW MEDICAL will inform the User in accordance with the legal provisions that apply to it and will indicate any measures to be taken. The execution of these measures is the responsibility of the User. The User agrees to take all appropriate measures to protect BOW MEDICAL Software, his/her own data including the Data, and/or software from contamination by any viruses on the Internet.
BOW MEDICAL may, at any time, take all emergency measures necessary for the security of BOW MEDICAL Software, to which the User agrees to cooperate in good faith.
BOW MEDICAL is only bound by a best-endeavours obligation in the context of the provision of BOW MEDICAL Software.
The User acknowledges that he/she uses BOW MEDICAL Software at his/her own risk. In this regard, the User undertakes to:
- use the BOW MEDICAL Software in accordance with the Contractual Documentation and the applicable regulations;
- not disturb the proper functioning of BOW MEDICAL Software;
- indemnify BOW MEDICAL, its officers, directors, employees, agents and other Users in case of complaint, action, suit, conviction of the latter resulting from the Data and/or non-compliance by the User or any person acting under his/her control, with the Contractual Documentation and/or applicable regulations.
BOW MEDICAL shall not, moreover, be held liable in the event of the following:
- temporary or total unavailability of all or part of BOW MEDICAL Software, difficulties related to response time and, in general, any kind of performance failure;
- destruction, accidental or otherwise, of all or part of the Data and/or BOW MEDICAL Software;
- failure due to the User or any third party acting under his/her control;
- missed profit, loss, inaccuracy or corruption of files or any data, including the Data, theft or misuse of Access Codes;
- loss of turnover or profit, loss of customers, loss of reputation, loss of opportunity suffered by a User;
- cost of obtaining a substitute product, service or technology, in connection with or arising from the non-performance or faulty performance of the Contractual Documentation;
- event of “force majeure” as defined by Article 1218 of the French Civil Code, as well as in case of electronic virus, computer attack or infiltration or disruption of electricity networks and/or the Internet, possible loss or damage caused by a virus, attack by denial of service or any other harmful technology that could damage the hardware, computer programs, data including the Data or any other material belonging to the Client and/or the User, due to the use of BOW MEDICAL Software.
The User undertakes to consider as confidential all data, technical or other information relating to BOW MEDICAL Software and/or which it has knowledge of in performance of any Contractual Documentation.
The User has access to confidential information only for the purpose of using BOW MEDICAL Software. The User can disclose, if necessary, such confidential information exclusively to staff members/employees who need to fulfil the contractual obligations while ensuring, in any case, that the latter are subject to an obligation of confidentiality at least as protective as this one.
Lastly, information is not considered to be confidential:
- if the User can prove that the information was known to him/her prior to the date on which the information was communicated on a confidential basis;
- if the information was in the public domain on the date the information was communicated, without prior breach by the User of his/her confidentiality undertaking;
- if the information is accessible to the public by publication or any other means of communication, unless this public access is due to the fault or negligence of the User who received it.
This clause binds the User for the duration of the license of BOW MEDICAL Software and for a period of five (5) years after the termination of the license for any reason whatsoever.
- Applicable law and jurisdiction
The ToU are governed by French law.
The Parties shall endeavour to resolve any dispute arising from their performance or interpretation amicably. To this end, BOW MEDICAL invites the User to send any request or dispute relating to the Contractual Documentation as a matter of priority to the address email@example.com or by post to BOW MEDICAL, 43 Avenue d’Italie, 80090 AMIENS – FRANCE, in order to find an amicable solution. Failing an amicable agreement, any dispute in connection with the Contractual Documentation and/or the use of BOW MEDICAL Software shall be subject to the jurisdiction of the competent French courts.
- General provisions
If one or more of the provisions of the ToU are deemed invalid or declared as such in application of a law, regulation or following a final decision of a competent court, the other stipulations will retain all their force and scope.
No waiver of any of the provisions of the ToU, whether by conduct or in any other way on one occasion or on several occasions, may be considered or interpreted as a waiver of the right to invoke that stipulation.
For any question regarding the ToU and/or BOW MEDICAL Software, BOW MEDICAL is at the disposal of the User who may address his/her requests to: firstname.lastname@example.org.
The Parties agree to consider messages received by electronic means and, more generally, electronic documents exchanged between them, as original writings within the meaning of Article 1316-1 of the French Civil Code, i.e. as having the same value as that accorded to the original. The Parties agree to keep faxes or electronic writings in such a way that they can constitute faithful and durable copies within the meaning of article 1348 of the French Civil Code.