Effective Date: November 30th, 2020
- The Platform is a cloud-based open platform supporting the management of data of people with diabetes. The Platform is based on the cornerstones of classic diabetes treatment and includes modules for graphical visualization of health devices data including data from Roche as well as third party devices and apps, manual entries, reports, therapy information, its adjustment and clinical parameters. The Platform allows registered patients to share their data with you, and it also allows you to connect your patients’ compatible meters, devices and/or apps to your computer and upload their glucose readings into a patient profile that you have created.
- The Platform is not intended for the diagnosis of or screening for diabetes mellitus. Users should be aware that the Platform is an information management service to support the analysis of health data including glucose data and is not intended as a substitute for the advice that you provide to your patients as an HCP.
- The standard functionalities of the Platform are as follows (“Standard Version”):
- Access to a secure platform for patients and the HCP team,
- Receiving of aforementioned health data,
- Integration with different health applications,
- Uploading of e.g. meter and/or pump data and other health devices data,
- Display of the data in the form of clear graphical reports,
- Viewing of current patient therapy.
- As an HCP, you may create a clinical Healthcare Center account and invite other providers and/or link with other HCPs with Platform accounts within your Healthcare Center. By using this Platform, you represent, acknowledge and agree that you are duly authorized to represent your Healthcare Center, to use this Platform and to create an HCP account in the Platform and that you also have the appropriate authority to create a Healthcare Center and link other HCPs and/or providers within your Healthcare Center, and also create patient profiles that will be shared with and utilized by Roche.
- The Platform allows an HCP team to share data of all registered patients. Patients can optionally be assigned to one or more HCPs or the whole team. User profiles can be used to help determine which HCPs are authorized to adjust patient therapies independently.
- Roche offers free of charge the access to the Standard Version of the Platform throughout the term of this Agreement. Additional paid-for premium modules or bundles may be offered by the respective local Affiliate to you. “Affiliate” shall mean an organization, which directly or indirectly controls a party to this Agreement, an organization, which is directly or indirectly controlled by a party to this Agreement, or an organization, which is controlled, directly or indirectly, by the ultimate parent company of a party. Control is defined as owning more than fifty percent of the voting stock of a company or having otherwise the power to govern the financial and the operating policies or to appoint the management of an organization. With respect to Roche the term “Affiliate” shall not include Chugai Pharmaceutical Co. Ltd., 1-1, Nihonbashi-Muromachi 2-chome, Chuo-ku Tokyo, 103-8324, Japan (“Chugai”), unless Roche opts for the inclusion of Chugai by giving written notice.
- You acknowledge and agree that additional terms and conditions may apply to the use of certain functionalities and features of the Platform and that use of such software, functionalities and features requires your acceptance of such specific terms and conditions prior to such functionalities and features being available to you. You also acknowledge that some of these additional functionalities may require a contract and payment terms related to the use of these functionalities.
- Roche undertakes to perform, free of charge, all new updates of the existing modules and functionalities of the Standard Version throughout the term of this Agreement.
- The use of the Platform is also subject to our Privacy Notice, which explains how we process personal information that is provided through the use of the Platform. It also sets out the information that you, as an HCP, should provide to your patients.
- Your obligations
- You warrant that only HCPs who work for or with your Healthcare Center, and who are involved in the treatment of people with diabetes, may use the Platform. You shall ensure that such HCPs and patients comply with this agreement, its appendices and applicable legislation.
- You shall appoint a master HCP to manage the Platform (“Master HCP”). The Master HCP is entitled to onboard, manage and withdraw further HCPs and patients of the Healthcare Center to the Platform, and to act as Healthcare Center’s representative with regard to the use of the Platform.
- You will only use the Platform for those patients from whom you have previously obtained their informed, voluntary or, as necessary, explicit consent, or when you deem it necessary in the course of provision or management of health, and will comply with any additional requirements arising under your local data protection, privacy, health or related laws. It is a misuse of the Platform and the Platform to enter personal patient information, including health-related information, without either first securing their informed, voluntary or, as necessary, explicit consent, or having determined another lawful basis like e.g. provision of health.
- Each Platform user has a personal username and password. The system traces critical interventions, such as communication and therapy adjustments at user level, thus ensuring far-reaching traceability. Bundling all these interventions into a comprehensive system means there is also complete transparency among team members about all aspects of patient treatment. Do not reveal your Platform account information to anyone else or disclose to anyone your password details. You are responsible for maintaining the confidentiality and security of your Platform account and for all activities that occur on or through it. You agree to notify Roche immediately if you become aware of a security incident or breach affecting your Platform account, including where you believe your password may have been compromised, and fully cooperate with us, law enforcement or other applicable regulatory body in addressing the breach. You agree to only use the Platform as expressly permitted herein.
- You acknowledge and agree that the Platform is an information management tool only, and Roche expects that any data accessed by you and other personnel will be used only by licensed healthcare professionals exercising their own independent medical judgment and duty of care. Any content or data contained in or available via the Platform is not a substitute for the professional judgment of healthcare providers in diagnosing, examining and treating patients. Roche, its affiliates and licensors are not responsible for the accuracy, timeliness, completeness, appropriateness or helpfulness of any content, data, templates or decision support tools available in the Platform, and you and your Healthcare Center are solely responsible for the patient's overall care, including confirming the accuracy or availability of all content and data and for making all medical, diagnostic, care, treatment, referral and prescription decisions (whether or not the Online Functionality is available).
- The Platform is not an electronic health records system. You are responsible for printing and/or downloading patient information that you deem relevant to your provision of medical care, treatment or advice.
- Where you create a Healthcare Center, you will supervise, monitor and train your employees, representatives, contractors, agents, and other HCPs who you add to a Healthcare Center that you create, to ensure proper use and security. You will limit access to the services available through the Platform at your locations to those duly authorized users.
- General Information on Data Privacy
- We are aware of the major responsibility that comes with your use of our Platform. Not only do you provide us with general personal data but also with data on your patient’s health. In our Privacy Notice we inform you about the use and protection of your and your patient’s data in connection with using our Platform.
- Except as otherwise provided in the Privacy Notice, you are the controller of the personal information, including health-related information, of your patients for whom you have created a patient profile for the purpose of healthcare provision. You should notify your patients about the processing of personal information including health related information, including transfers, or access which may be required.
- Roche will process the personal information of your patients, including their health-related information, as a processor on your behalf for the purpose of the health care you provide to your patients, and you will be the controller of your patients’ personal information including health-related information in such instances.
- By submitting a testimonial you agree that Roche may use this statement for promotion, however in anonymized form in order to protect your privacy.
- Availability and accuracy of information
- The Platform or any feature or part thereof, may not be available in all languages or in all countries and Roche makes no representation that the Platform, or any feature or part thereof, is appropriate or available for use in any particular location. To the extent that you choose to access and use the Platform, you do so at your own initiative and are responsible for compliance with any applicable laws. Roche makes no representations or warranties regarding the accuracy, completeness, reliability or timeliness of any data accessible or viewed by you or of any content generated by the data stored in the Platform.
- You may delete your Platform account at any time. Your Platform account will be deleted upon receipt and processing of your delete request in due course, unless there is any contractual or legal obligation to keep your information in our databases. Roche has no responsibility for retaining/storing or backing up your Platform account on your behalf. You are solely responsible for retaining/maintaining/storing and backing up (electronically and/or with hard copies) any data that you wish to preserve.
- If you email, back up or otherwise share any of your personal information or reports with third parties, that information may not be encrypted and Roche will have no ability to manage the privacy or security of that information. You should take the steps that you determine appropriate to protect the security of such information.
- Roche has no duty to remedy any failure of the online functionality of the Platform, if failure is the result of hacking by a third party, internet disconnections, failure of third party internet providers, accident, abuse, misuse, alteration, use with unauthorized software or hardware or not having installed latest updates of the Platform provided by Roche (if any).
- Links to third-party websites and solutions
- This Platform may be linked to other websites and solutions that are not controlled or operated by Roche (collectively, “Third-Party Solutions”). Certain areas of the Platform may allow you to interact and/or conduct transactions with such Third-Party Solutions. In any case, you acknowledge and agree that the Third-Party Solutions may have different privacy policies, terms and conditions and/or user guides than the Platform, and you further acknowledge and agree that your use of such Third-Party Solutions is governed by the respective Third-Party Solution privacy notice and terms and conditions and/or user guides. You hereby agree to comply with any and all terms and conditions, user guides and privacy policies of any Third-Party Solutions. Roche is providing links to the Third-Party Solutions to you as a convenience, and Roche does not verify, make any representations or take responsibility for such Third-Party Solutions, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third-Party Solutions.
- Disclaimer of Warranties
- Any content included in the Platform is for the purpose of providing information only. Roche makes no representation, express or implied, as to the accuracy, completeness or timeliness of the information.
- Roche shall provide its services on the Platform with the diligence of a prudent business. Roche, its affiliates and its third-party providers do not warrant that the functions contained in the Platform will meet your requirements or that the operation of the Platform will be uninterrupted or error free. To this extent, no liability for defects shall apply. To the extent that applicable law requires Roche to provide warranties, you agree that the scope and duration of such warranty shall be to the minimum extent required to be provided under such applicable law.
In no event does Roche provide any warranty or representation with respect to any third-party hardware or software, and Roche disclaims all liability with respect to any failures thereof.
- Roche’s liability – irrespective of the legal ground – shall be limited to cases where the damage was caused by slightly negligent infringement of an essential contractual obligation or by gross negligence or intent on the side of Roche.
- If Roche is held liable for an infringement of an essential contractual obligation without the existence of gross negligence or intent, liability shall be limited to the extent of the damage which Roche could typically expect to arise at the time the Agreement was signed on the basis of the circumstances of which it was aware at this point in time.
- Damage claims in accordance with the Product Liability Act and the Pharmaceuticals Act and those due to the injury of life, limb and health or the assumption of a guarantee remain unaffected.
- If the liability of Roche is excluded or limited, this shall also apply to the personal liability of its employees, representatives and vicarious agents.
- You shall be obliged to inform us immediately and in detail about any damage. In particular, you shall inform us immediately and in detail about cases in which third parties raise claims against you, to give us the opportunity to exert our influence on the development of the incidence. Roche shall be entitled to modify on its own account any software programs supplied by Roche to prevent or eliminate any infringement or alleged infringement of third-party industrial property rights.
- Roche shall not be held liable for the consequences of any improper modification or handling of the Platform.
- Claims against Roche based on defects and the liability of Roche are excluded in particular for damages and the consequences thereof caused by you using the supplied hardware or software in combination with any hardware or software or any other components not tested and released by Roche. The same applies to any modification to hardware or software provided by Roche. This section does not apply to the extent Roche has previously agreed in writing to such action or use.
- The liability of Roche is particularly excluded if and to the extent that the damage is attributable to the fact that the Customer did not take appropriate precautions against loss of data, in particular by making back-up copies of all programs and data. Back-up copies must be made at the time intervals customary in your field of activity, however at least once a day.
- If you are in default of acceptance or violate any other duty on your end to cooperate, Roche shall be entitled to claim compensation for the damage incurred by Roche, including extra expenses, if any.
- Trademarks and proprietary rights
- ROCHE DIABETES, ACCU-CHEK, MYSUGR and related brand marks are trademarks of Roche. Other trademarks are the property of their respective owners. No license or right, express or implied, is granted to you in any of the aforesaid trademarks, and you further agree that you shall not remove, obscure, or alter any proprietary notices (including trademark and copyright notices) that may be affixed to or contained within the Platform. No use of any Roche trademark, trade name, or trade dress may be made without the prior written authorization of Roche, except to identify the product or services of the company.
- Termination of your Platform account
- Roche may terminate this Agreement for convenience upon 30 days prior written notice.
- Roche may suspend or terminate your Platform account for any of the following reasons without advance notice to you:
- Failure to provide accurate, current and complete Platform account information.
- Failure to report any security incident or any actual or suspected compromise of your password or Platform account.
- The parties agree that electronic signatures (e.g. DocuSign) or click-2-accept on the Platform shall have the same legal force and effect as wet signatures and shall be accepted by the parties as written form under this Agreement.
- Any claims and other rights of the Customer resulting from this Agreement shall not be assignable without the prior consent of Roche.
- The exclusive place of jurisdiction for all disputes between the parties arising from or in connection with this Agreement or their business relations is Mannheim/Germany.
- Should any of the individual provisions of this contract be or become completely or partially invalid or void, this will not affect the validity of the remaining provisions. Such invalid or void provisions shall automatically be replaced by a legally effective regulation which comes closest to the economic purpose. The same applies to any gap.
COUNTRY SPECIFIC PROVISIONS
China (excluding Hong Kong, Macau and Taiwan)
Chile, Colombia and Saudi Arabia
- EXCEPT AS PROVIDED HEREIN, ROCHE DISCLAIMS ALL WARRANTIES, PROMISES OR REPRESENTATIONS, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- You acknowledge and agree that you shall be solely responsible for, and Roche shall have no liability in connection with, your access to and use of patient data. You shall access, use and disclose such data solely in accordance with your applicable policies and all applicable federal and state laws and regulations, including but not limited to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA").