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Terms and Conditions

General Terms and Conditions for Patients

LevioMed GmbH, Rainweg 101, 69118 Heidelberg, Germany

Preamble

LevioMed GmbH (hereinafter. Provider) operates a platform under the internet address www.Leviomed.com on which physicians resident and practising in Germany can provide their services to patients worldwide. The provision of medical services takes place by way of online consultation on this platform. The platform serves to simply bring together doctor and patient and to provide the medical service in the form of diagnosis and consultation. The provider himself is only an intermediary of the service. In addition to the operation of the software-based internet platform, the provider’s offer also includes the operation of a mobile application, a so-called app. This can be downloaded free of charge from the app stores indicated by the provider.

General Scope of Application

  1. These General Terms and Conditions (GTC) apply to all business relationships between the Provider and the Patient (hereinafter: Patient). They regulate all matters in connection with the use of the platform and the app (hereinafter together: platform).
  2. Individual agreements made with the patient in individual cases (including ancillary agreements, supplements and amendments) shall in any case take precedence over these GTC. The content of such agreements must at least be in text form.
  3. Legally relevant declarations and notifications to be made to us by the patient after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing or text form to be effective.
  4. References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.

Use, Account

  1. To use the services offered via the platform, the patient creates an account. The patient is obliged to provide truthful information and not to impersonate another person or company or to use a name for which he/she is not authorised to use. He undertakes to create only one account. The data provided must be truthful and complete. The patient is not permitted to transfer the account to third parties without the provider’s consent.
  2. The patient is solely responsible for the security of his/her password. Disclosure to third parties is not permitted. If the password has become known to third parties, he/she is required to change his/her password immediately.
  3. The Patient undertakes not to transmit any content containing viruses, Trojans or other programming that may damage the Provider’s system. In the event of infringement, the Patient may be excluded from participation if he/she has been informed of this in advance by the Provider. The patient shall compensate the provider for any damage caused by a culpable violation of the above obligations.
  4. The announcement as well as the publication and distribution of insulting, racist or comparable content as well as political or religious information offers via this platform in any way is prohibited. The Patient undertakes not to disseminate any advertising or inaccurate warnings of viruses, malfunctions and the like or to invite participation in lotteries, snowball systems, chain letters, pyramid schemes and comparable actions.
  5. The Patient is obliged to comply with and accept the rules set out in these Terms and Conditions of Participation each time he/she uses the Platform. In the event of a breach of these rules, the patient may be excluded from using the platform with immediate effect.

Scope of services

  1. The provider shall provide the patient with a platform that can be accessed and retrieved via the internet, on which the patient has the option of selecting doctors and conducting online consultations with them for a fee. The platform can be accessed by patients worldwide from the internet. In addition, the patient is given the option of using a mobile application (app).
  2. For this purpose, the patient gives as much information as possible on the platform about his complaints and his state of health. They are then shown a selection of doctors whose profiles they can view and who they can choose for the online consultation and contact to book an appointment.
  3. The request to a doctor for an online consultation constitutes a legally binding offer by the patient. With the agreement of a binding appointment with the doctor, an effective treatment contract is concluded between the patient and the doctor. The patient receives a confirmation of his/her appointment by e-mail. The patient is obliged to provide the most accurate information possible in preparation for the online consultation and to make all available relevant documents and records available to the doctor prior to the consultation. For this purpose, he will upload the relevant documents and records to the platform in an appropriately specified format.
  4. For the use of the services of the provider and the use of the platform, the patient himself/herself shall ensure that he/she has the necessary technical requirements. This includes at least an internet-capable terminal device (computer or smartphone) as well as a correspondingly fast internet connection with sufficient bandwidth. If these prerequisites are not available on the part of the patient and the appointment therefore cannot take place without being cancelled, or if the appointment is interrupted for this reason, the agreed fee is nevertheless due in full and payable by the patient.
  5. If the patient does not attend the agreed appointment without cancelling it, the agreed fee is nevertheless due and payable in full by the patient. If the patient does not cancel an agreed appointment at least 24 hours in advance, a handling fee of EUR 60.00 shall be payable to the provider.
  6. The patient has the option of booking an interpreter for his/her consultation via the provider. The costs of the interpreter will be shown to him/her before the binding booking and are due for the online consultation and payable by the patient.
  7. The patient may also have family members attend the appointment and be represented entirely by relatives or third parties. In this case, however, he/she is obliged to inform the doctor of this in good time beforehand and to give precise details of the name of the family members. The doctor may refuse the consultation if he has not received a clear declaration in text form from the patient regarding the participation of third parties in the consultation. In this case, the agreed fee shall be paid in full by the patient.
  8. At the end of the consultation, the patient shall receive a report from the practitioner on the consultation. The report shall contain a summary of the consultation, including the presumed diagnosis and any further treatment recommendations.
  9. The App shall be made available for download via the Google Playstore as well as in the App Store (Apple) (free of charge in the Playstore and App Store). The app made available by the Provider shall be provided to the Patient in the object code under the terms of use stipulated in this contract for the duration of this contract. There is no claim to surrender of the source code. The hardware and software environment within which the app can be used shall be communicated to the patient separately on request.
  10. A contractual relationship is established exclusively between the doctor and the patient as the end customer. The provider has no influence on the establishment or non-establishment of such a contractual relationship. Whether a contract between doctor and patient is concluded depends on the respective declarations of the contracting parties involved. Patients have no claim against the provider for the conclusion of a contract.
  11. These terms of use exclusively regulate the use of the platform by patients. The contracts and agreements between the doctor and the patient as end customers regarding treatments, consultations, diagnoses or similar medical services are merely mediated by the provider. These contracts do not have any legal effect vis-à-vis the provider. Patients may assert claims arising from the contract mediated by the Provider exclusively against the doctor as their respective contractual partners. No claims whatsoever arise against the provider from the mediated contractual relationships.

Warranty

  1. The warranty shall be governed by the statutory provisions unless otherwise stipulated below. According to the recognised state of the art, it is not possible to develop complex software products that are completely free of errors. The agreed quality of the software provided (web application and mobile application) is therefore not directed to the fact that no programme errors may occur, but only to the fact that the software does not have any programme errors that affect the functionality of the programme for the use assumed under the contract.
  2. The Provider shall endeavour to provide access to the Platform around the clock. However, the Patient has no claim to uninterrupted availability of the Service. Access to the platform may occasionally be interrupted or restricted to allow for repairs, maintenance, system-immanent disturbances of the internet at third-party network operators, the introduction of new facilities or services as well as in case of force majeure. There is no entitlement to performance or compensation from the Patient if the Platform cannot be accessed for the above reasons or due to force majeure, unless the Client wanted to carry out an online consultation at that particular time.
  3. Claims arising from the online consultation and the related treatment are directed exclusively against the attending physician. The provider is not liable for any resulting damages and does not provide any warranty for the consultation that took place or other treatment services.
  4. The provider is also not liable for a cancellation or cancellation of the appointment by the doctor. In the event of a cancellation by the doctor, the patient will receive a full refund of the fee paid if he/she does not arrange a replacement appointment with the doctor.

Liability

  1. The provider is liable for intent and gross negligence as well as in the case of personal injury without limitation, but for slight negligence only in the case of breach of material contractual obligations, as well as in the case of impossibility for which the provider is responsible and in the case of default. The liability is limited to the damage typical for the contract, the occurrence of which the provider had to expect at the time of conclusion of the contract due to the circumstances known at that time. In addition, the provider is liable without limitation for damages for which mandatory statutory provisions, such as the Product Liability Act, provide for liability. The liability is limited to the use of the platform and the app and does not extend to medical services, as the provider does not provide these services.
  2. The Provider shall only be liable for loss of data in accordance with the above paragraphs and only if such loss could not have been avoided by reasonable data backup measures on the part of the Patient.
  3. The limitations of liability shall also apply mutatis mutandis to the Provider’s vicarious agents.
  4. There is no further liability on the part of the provider; in particular, the provider is not liable for data provided by the patient, unless the provider makes this data its own by passing it on.

Costs and payment

  1. All fees stated are gross prices including the statutory value added tax.
  2. The fee is due for payment before the agreed date for the online consultation. The patient has to pay in advance.
  3. If the receipt of payment cannot be determined in time, the entitlement to carry out the online consultation shall lapse.
  4. If the service of Stripein is used for payment processing, the payment shall be made via the gateway of Stripein, which is integrated into the platform. The payment service provider’s terms of use and data protection provisions apply to the processing of the payment.
  5. Alternatively, the patient transfers the invoice amount to the account of Leviomed GmbH. The provider points out that further personal data will be collected, processed and used here. The terms of use and data protection provisions of the selected payment service provider apply exclusively.

Duration of use

  1. The contract of use of the platform is initially concluded for an indefinite period.
  2. The patient has the right to terminate his/her participation in the platform at any time without observing a period of notice by simply notifying the provider in writing or by e-mail. The provider is entitled to terminate the user contract without giving reasons with a notice period of one month.
  3. The provider is further entitled to terminate the user relationship for good cause without notice. Good cause is deemed to exist, among other things, if the patient violates the above conditions or the use is otherwise abusive or harmful to the provider.
  4. Notice of termination by the Provider shall be given by e-mail.

Rights and duties

  1. The Provider is entitled to block the Patient’s access if there is reasonable suspicion that the data introduced and stored by the Patient is unlawful and/or infringes the rights of third parties. A reasonable suspicion of illegality and/or infringement of rights exists in particular if courts, authorities and/or other third parties inform the Provider thereof. The provider shall notify the patient of the removal and the reason for it without delay. The block shall be lifted as soon as the suspicion is invalidated.
  2. The Provider reserves the right to expand or improve its range of services to the extent necessary to adapt it to current technical conditions, in particular to ensure the security and stability of the service or to meet changed legal requirements. The provider undertakes to make such changes only within a framework that is reasonable for the patient and taking into account the interests of all parties to the contract.
  3. The Patient shall be liable to the Provider for all damage caused to him/her by the use of the platform by him/her or his/her employees. In this respect, he/she shall indemnify the provider against all claims that are attributable to use that is not in accordance with the contract.
  4. If the Provider provides updates, the Patient is obliged to install and use the updates, if applicable. If the Patient does not use the updates and the update maintains the state of the art or maintains or improves the functionality of the platform or the app, the Patient cannot assert any claims against the Provider based on a defect of the platform or the app that would not exist if the updates had been properly installed. The burden of proof in this respect shall be on the Patient.
  5. The Patient is further obliged to temporarily refrain from using the Platform during maintenance periods, to accept changes to the Platform in the form of upgrades and updates, to cooperate in quality assurance measures and to provide all information required for the operation and functionality of the Platform.
  6. The patient is not permitted to make video and/or audio recordings or other recordings or recordings of the consultation.
  7. The patient is not permitted to conclude contracts for medical consultations with physicians outside the platform by circumventing the service offer of the provider or to expand the content of contracts concluded via the platform, provided that the initial contact between the patient and the physician was mediated via the platform. For each case of violation, the Patient shall pay an appropriate contractual penalty to be determined by the Provider, the appropriateness of which may be reviewed by a competent court in individual cases at the request of the Patient.

Industrial property rights/licence/rights of use

  1. Upon commencement of the contract, the Patient shall receive a non-exclusive, non-transferable and non-sublicensable right, limited in time to the term of this contract, to use the user interface of the platform for display on the screen in the main memory of the terminal devices used for this purpose in accordance with the contract and to make the resulting reproductions of the user interface to the extent granted in this contract.
  2. The Patient may not edit, reproduce, distribute, publicly reproduce by wire or wireless means or make publicly accessible or use in any other way the Platform (web application) or the associated App or any other copyrighted works or designs made available, unless this is expressly permitted under the terms of this Contract. The Patient is not entitled to make this Platform or the App available for use by third parties, whether in return for payment or free of charge. The Patient is therefore expressly not permitted to sub-license the platform.
  3. The contractual software (mobile application or app) is protected by copyright. The copyright also includes the object code, the documentation, the appearance, structure and organisation of the programme files, the programme name, logos and other forms of representation within the software. The patient is not entitled to copy or reproduce the app, as well as the user documentation, in whole or in part, in its original or modified form or in a form mixed with other software or included in other software, unless it is expressly permitted under Section 69d (1) UrhG and is absolutely necessary for the intended use of the program, including error correction.
  4. The Patient is not permitted to modify the software (platform and app) in any form or to decompile the programme code and to carry out any other reverse engineering of the software on which the app is based or to otherwise attempt to make the source code accessible, except in the form permitted in Section 69e UrhG and for the purposes listed therein. However, this shall only apply on condition that the provider has not made the information necessary for this accessible to the patient upon request within a reasonable period of time.
  5. If the right of use is terminated or expires due to the passage of time or in any other way, the Patient shall immediately cease to use the software including all components. If necessary, he/she shall be liable for the continued use by third parties commissioned by him/her. He/she shall immediately remove the app from all end devices.

Miscellaneous

  1. Contracts between the Provider and the Patient shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods. The contractual language is exclusively German.
  2. If the Patient is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes arising from the use of the platform with the Provider shall be deemed to be the registered office of the Provider. Otherwise, the statutory provisions on the place of jurisdiction shall apply.
  3. Amendments and supplements to this contract must be made at least in text form to be effective. This also applies to the waiver of the text form requirement. Verbal ancillary agreements to this contract do not exist at the time of the conclusion of the contract.
  4. The Provider is entitled to amend the above GTC with effect for the future, in particular in order to respond to a changed legal situation or other changes in the legal, technical or other circumstances. In this case, the Provider shall notify the Patient of changes to the GTC on its platform and by e-mail. The patient will be given the opportunity to object to the amended GTC within four weeks. If no objection is made or if the changes are expressly agreed to, the changes will take effect at the notified time of entry into force. Otherwise, these GTC shall continue to apply unchanged. In this case, the provider is entitled to terminate the contract extraordinarily. The patient will be informed of this legal consequence in the notification of changes.
  5. Should individual provisions of these Terms of Use be invalid in whole or in part, this shall not affect the validity of the rest of the Terms of Use. The ineffective points shall be replaced by the statutory provisions, if any.
  6. The European Commission provides a platform for online dispute resolution (OS), which can be found at ec.europa.eu/consumers/odr/. Apart from that, we are neither willing nor obliged to participate in a dispute resolution procedure before a consumer arbitration board.

General Terms and Conditions for Doctors

LevioMed GmbH, Rainweg 101, 69118 Heidelberg, Germany

Preamble

LevioMed GmbH (hereinafter. Provider) operates a platform under the internet address www.Leviomed.com on which physicians resident and practising in Germany as well as other paramedical service providers (e.g., physiotherapists) can provide their services to patients worldwide. The provision of medical services takes place by way of online consultation on this platform. The platform serves to simply bring together doctor and patient and to provide the medical service in the form of diagnosis and consultation. The provider himself is only an intermediary of the service. In addition to the operation of the software-based internet platform, the provider’s offer also includes the operation of a mobile application, a so-called app. This can be downloaded free of charge from the app stores indicated by the provider. 

 1 General; Scope of Application

(1) These General Terms and Conditions (GTC) apply to all business relationships between the Provider and the physician (hereinafter: User). They regulate all matters in connection with the use of the platform and the app (hereinafter together: platform) with the exception of the treatment contracts concluded between user and patient. With regard to these contracts, the Provider is not a contractual partner and therefore does not owe any services. 

(2) These GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the user shall only become part of the contract if and to the extent that we have expressly consented to their validity. This requirement of consent shall apply in any case.

(3) Individual agreements made with the user in individual cases (including ancillary agreements, supplements, and amendments) shall in all cases take precedence over these GTC. The content of such agreements must at least be in text form.

(4) Legally relevant declarations and notifications to be made to us by the user after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing or text form to be effective. 

(5) References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.

 2 Conclusion of contract

(1) The contract is concluded exclusively between the provider and the user. The user’s employees use the platform and the app and, if applicable, other components exclusively via the respective user. There is expressly no contractual relationship between the provider and the user’s employees.

(2) The contract between the provider and the user is concluded, including these GTC, by the user registering on the platform.

 3 Use, Account

(1) To use the services offered via the platform, the user creates an account. The user is obliged to provide truthful information and not to impersonate another person or company or to use a name for which he is not authorised to use. He undertakes to create only one account. The data provided must be truthful and complete. The user is not permitted to transfer the account to third parties without the provider’s consent.

(2) The user is solely responsible for the security of his password. Passing it on to third parties is not permitted. If the password becomes known to third parties, the user is required to change his password immediately. 

(3) The user undertakes not to transmit any content containing viruses, Trojans or other programming that could damage the provider’s system. In the event of infringement, the user may be excluded from participation if he/she has been informed of this in advance by the provider. The user shall compensate the provider for any damage caused by a culpable violation of the above obligations. 

(4) The announcement as well as the publication and distribution of insulting, racist or comparable content as well as political or religious information offers via this platform in any way is prohibited. The user undertakes not to disseminate any advertising or inaccurate warnings of viruses, malfunctions, and the like or to invite participation in competitions, snowball systems, chain letters, pyramid schemes and comparable actions.

(5) The user shall create a profile in which he/she describes the services he/she offers and, in particular, his/her areas of expertise as precisely and accurately as possible. The user shall provide the information required during registration in full.

 4 Benefits

(1) The provider shall provide the user with a platform that can be accessed and retrieved via the internet, on which the user has the possibility to advertise his service via a profile created by him and to carry out consultations (online or in writing) for patients. The platform can be accessed by patients worldwide from the internet. A patient’s request to the user for a consultation constitutes a legally binding offer by the patient. With the confirmation and agreement of the appointment, an effective treatment contract is concluded between the patient and the user.

(2) On the platform, the user has the possibility to create a profile in several steps, in which he has to describe his services and competences as precisely as possible. The mandatory information to be provided by the user includes his field of expertise. In addition, the user has to specify the fee to be paid. He may change this at any time. However, it is not possible to change the stated fee if the patient has booked an appointment. The fee for the patient must be stated as a big amount, including the applicable statutory value-added tax.

(3) In addition, in the course of the treatment contracts concluded via the platform, the user shall prepare a report on the consultation for each patient after completion of the consultation and send it to the patient. The reports shall contain at least a summary of the consultation including the presumed diagnosis as well as further treatment recommendations, if any, if recommendations were given to the patient. The user shall send the report at least in text form to the provider, who shall forward the report to the patient. The user also has the option to arrange a follow-up appointment with the patient.

(4) It is also possible to bring an interpreter to the consultation if the patient so wishes. The user must tolerate the participation of the interpreter. The user can only refuse the participation of family members or other persons if he has not received a clear declaration from the patient about the participation of third parties in the consultation. 

(5) The Provider shall make the platform (web application) available to the User for use in its most current version at the router exit of the data centre where the server with the software is located, the so-called transfer point. The platform as software, the computing power required for use and the required storage capacity are provided by the provider as a contractually agreed service. However, the provider does not owe the establishment and maintenance of the data connection between the user’s IT systems and the transfer point. 

(6) The App shall be made available for download free of charge via the Google Playstore as well as in the App Store (Apple). The app made available by the Provider shall be provided to the User in the object code under the terms of use stipulated in this contract for the duration of this contract. There shall be no claim to surrender of the source code. The hardware and software environment within which the app can be used shall be communicated to the user separately upon request.

(7) The provider reserves the right to expand or improve its range of services to the extent necessary to adapt it to current technical conditions, in particular to ensure the security and stability of the service or to meet changed legal requirements. The provider undertakes to make such changes only within a framework that is reasonable for the users and taking into account the interests of all contracting parties.

(8) According to the recognised state of the art, it is not possible to develop complex software products that are completely free of errors. The agreed quality of the software provided (web application and mobile application) is therefore not directed to the fact that no programme errors may occur, but only to the fact that the software does not have any programme errors which influence the functionality of the programme for the use assumed under the contract.

(9) A contractual relationship is established exclusively between the user and the patient as the end customer. The provider has no influence on the establishment or non-establishment of such a contractual relationship. Whether or not a contract is concluded between user and patient depends on the respective declarations of the contracting parties involved. Users have no claim against the provider for the conclusion of a contract.

(10) These terms of use exclusively regulate the use of the platform by the users. The contracts and agreements between the user and the patient as end customer regarding treatments, consultations, diagnoses or similar medical services are merely mediated by the provider. These contracts do not have any legal effect vis-à-vis the provider. Users may assert claims arising from the contract mediated by the Provider exclusively against patients as their respective contractual partners. No claims whatsoever arise against the provider from the mediated contractual relationships.

 5 Level of Service

(1) The Provider guarantees an availability of its services of 95.0% on an annual average. This does not affect times when the service cannot be accessed via the internet due to technical or other problems that are beyond the provider’s control (force majeure, fault of third parties, etc.). In such cases, the provider shall endeavor to restore the technically smooth operation within the scope of its possibilities.

(2) In the event of maintenance work, the service may be temporarily interrupted. The Provider shall endeavour to keep the associated restrictions as low as possible and, if possible, to carry them out outside normal business hours. 

(3) Adjustments, changes and additions to the services which are the subject of the contract as well as measures which serve to determine and remedy malfunctions will only lead to a temporary interruption or impairment of accessibility if this is absolutely necessary for technical reasons. 

 6 Warranty 

(1) The provider undertakes to maintain the platform in a condition in accordance with the contract for the duration of the contract in accordance with  5 or the Service Level Agreement so that it is suitable for use in accordance with the contract. He warrants that the user can use the platform without infringing the rights of third parties.

(2) The user is obliged to notify the provider immediately of any malfunctions and defects. The notification must be made in text form. If the Provider is unable to remedy the defect due to the User’s failure to notify the Provider of the defect, rights to reduction, damages and termination are excluded. The user must describe the time of occurrence of the defects as well as their detailed circumstances as precisely as possible.

(3) The provider points out to the user that restrictions or impairments of the services provided may arise that are beyond the provider’s control. This includes, in particular, actions by third parties not acting on behalf of the provider, technical conditions of the internet that cannot be influenced by the provider and force majeure. The hardware and software and technical infrastructure used by the user can also have an influence on the services of the provider. Insofar as such circumstances have an influence on the availability or functionality of the service provided by the provider, this has no effect on the contractual certainty of the services provided.

(4) The Provider shall not be liable regardless of fault for defects that initially exist. The user is entitled to the statutory warranty rights in accordance with this contract. If the provider is in default of remedying the defect, the user may only terminate the contract without notice if the defect is significant and the provider was previously threatened with termination. He may only exercise his right to remedy the defect himself if he is technically and actually able to do so. He shall not have the right to access the Provider’s server or in particular the source code of the software for this purpose. A right to decompile the software cannot be derived from this either.

(5) Claims for damages against the Provider shall become statute-barred 12 months after they have arisen, unless they are based on a tortious or intentional act.

 7 Duties of the Provider

(1) The provider undertakes to take appropriate precautions against data loss and to prevent unauthorised access by third parties to the users’ data. To this end, the provider shall make regular backups of the data and operate its IT infrastructure in accordance with the general state of the art. Furthermore, the provider shall observe and comply with the statutory provisions on data protection and data security.

(2) Any data brought in by the user shall remain his property for the entire term of the contract. The Provider shall not be responsible for the input or conversion of data existing with the User. This has to be done by the user himself.

(3) The provider is entitled to block the user’s access if there is reasonable suspicion that the data provided and stored by the user is illegal and/or infringes the rights of third parties. A reasonable suspicion of illegality and/or infringement of rights exists in particular if courts, authorities and/or other third parties inform the provider thereof. The provider shall notify the user of the removal and the reason for it without delay. The block shall be lifted as soon as the suspicion is rebutted.

(4) If and to the extent that the User processes personal data of third parties on IT systems for which the Provider is technically responsible, the Provider shall conclude a contract for commissioned processing with the User.

 8 Duties of the users 

(1) After completion of the consultation, the user shall prepare a report on the consultation for the patient and send it to the patient. The reports shall contain at least a summary of the consultation including the presumed diagnosis and, if applicable, further treatment recommendations, provided that recommendations were given to the patient. The user shall send the report at least in text form to the provider, who shall forward the report to the patient. The report shall be prepared and sent no later than 7 days after the end of the consultation.

(2) The user is not permitted to disclose access data to third parties without authorisation, except to his employees. If a third party obtains knowledge of the access data, the user must inform the provider immediately. The user must keep the access data transmitted to him by the provider secret and also instruct his employees to keep the access data secret. In case of suspicion of misuse by unauthorised third parties, the user is obliged to inform the provider of this suspicion. In this case, the Provider is entitled to redistribute the access authorisation, e.g. to assign new passwords. The user undertakes to exercise the necessary care in handling his access data and to maintain strict confidentiality. The user shall be liable for any damage incurred by the provider as a result of a breach of the user’s own duty and for any breaches of duty by the user’s employees in this respect.

(3) For the purposes of implementing the contract, the user grants the provider the right to duplicate the data to be processed by the provider for the user and to pass it on to patients, insofar as this is necessary to provide the services owed under this contract. The Provider is also entitled to keep the data in a failover system or separate failover computer centre. In order to eliminate malfunctions, the Provider is further entitled to make changes to the structure of the data or the data format.

(4) The user is not entitled to transfer this contract with all rights and obligations to third parties. 

(5) The user is responsible for creating the necessary conditions for accessing and using the platform. This includes both the establishment of an internet connection to the transfer point, if applicable the availability of the corresponding internet speed and bandwidth and the provision of any necessary hardware and software as well as other IT infrastructure for access to and use of the platform. 

(6) The user is liable to the provider for all damages caused by the use of the platform by him or his employees. In this respect, the user shall indemnify the provider against all claims that are attributable to use that is not in accordance with the contract.

(7) If the provider makes updates available, the user is obliged to install and use the updates, if applicable. If the user does not use the updates and the update maintains the state of the art or maintains or improves the functionality of the platform or the app, the user cannot assert any claims against the provider based on a defect in the platform or the app that would not exist if the updates had been properly installed. The burden of proof in this respect shall be on the user.

(8) The User is furthermore obliged to temporarily refrain from using the Platform during maintenance periods, to accept changes to the Platform in the form of upgrades and updates, to cooperate in quality assurance measures and to provide all information required for the operation and functionality of the Platform.

(9) The user transfers to the provider a simple right of use to the respective name or trademark or company logo as well as to all other intellectual property and industrial property rights, insofar as this is necessary for the fulfilment of the contract and for advertising the services of the provider. Furthermore, the user allows the provider to publish photos and other photographs/illustrations of the user’s practice or clinic as well as information about the user’s career or competences for advertising purposes on its website or on the social media channels operated by the provider. The user confirms to the provider upon conclusion of the contract that he may dispose of all industrial property rights and intellectual property rights related to him which are necessary for the use of the platform. The user expressly indemnifies the provider against any existing claims by third parties in this regard, including any legal fees and court costs. This right of use is limited in time and content to the duration of the contract period and the publication of offers on the platform. The provider is entitled to grant corresponding sub-licences, if necessary, insofar as this is required for technical reasons for the fulfilment of the contract.

(10) The user is not permitted to conclude contracts for medical consultations with patients outside the platform by circumventing the service offer of the provider or to expand the content of contracts concluded via the platform, provided the initial contact between user and patient was mediated via the platform. For each case of violation, the user shall pay an appropriate contractual penalty to be determined by the provider, the appropriateness of which may be reviewed by a competent court in individual cases at the request of the user.

(11) If an online consultation is interrupted for technical reasons and cannot be continued, the user is obliged to make up the cancelled appointment without being remunerated for the make-up appointment. This applies regardless of who is responsible for the technical disruption. 

 9 Costs and payment

(1) The fee incurred for the use of the platform shall be based on the amount of the fee stated by the user. The amount of the fee is calculated on a pro rata basis and amounts to 20% of the net fee in each case. The exact amount of the respective fee shall be displayed to the user when he selects his fee before it is determined. 

(2) The indication of the fee and, if applicable, other charges incurred is to be understood as net plus the applicable statutory value-added tax. For the patient, however, the fee must be stated as a gross amount including the applicable statutory value-added tax.

(3) The provider collects the fee from the patient by means of a payment service provider. The provider shall forward the fee to the user minus the respective fee due. The fee shall not be paid until the user has sent his report on the consultation to the provider. No due date occurs before that . 

(4) If a patient cancels or does not attend an agreed appointment, for whatever reason, no claim to the stated fee arises. The claim only arises if the appointment takes place and the user makes a report about it and sends it to the provider.

(5) The user shall receive an invoice for the fee payment. Billing by the provider shall be monthly.

(6) The user is only entitled to set-off if his counterclaim has been legally established or is undisputed or has been acknowledged in writing by the provider or if it concerns mutually dependent claims (performance and counter-performance).

(7) The provider also has a right of retention if the user defaults on a payment after a reminder and a grace period. This may lead to an interim impairment of the use of the platform. The assertion of the right of retention shall be announced to the user in advance.

(8) The Provider reserves the right to adjust its prices both for the use of the software during the term of the contract. The Provider shall only make the price adjustment if the adjustment is necessary for the Provider to cover the concrete development of the Provider’s costs. This is the case in particular in the event of increased personnel and development costs. The price adjustment will be made at reasonable discretion and only if it is reasonable for the user. In doing so, the Provider shall take into account the general price development of recent years. Price adjustments shall become effective after announcement, with a notice period of 3 months to the 1st of a quarter. Price adjustments entitle the user to terminate the contract by giving four weeks’ notice to the end of the quarter.

(9) If the provider changes, expands or supplements its range of services in accordance with  4 of this contract, it is also entitled to adjust the usage fee in an appropriate amount to the changes made to the service. The provider shall notify the user of the adjustment of the fee in text form in compliance with the above-mentioned deadlines. The change shall be made in the manner and to the extent that the scope and performance are changed by the provider. If the user does not wish to continue the contract at the changed conditions, he is entitled to extraordinary termination in text form with a notice period of 14 days to the date of the change. 

 10 Duration and termination

(1) The contract for the use of the platform is concluded for an indefinite period of time and can be terminated at any time without giving reasons with immediate effect. The declaration of termination can be made in text form or in the account.

(2) The right to terminate without notice for good cause remains unaffected for both contracting parties. Good cause entitling the Provider to terminate the contract exists, in particular if the User violates the rights of use granted to him in this contract or fails to properly fulfil his obligations under this contract. 

(3) After termination of the contract, the user must immediately cease using the platform including the app and, if applicable, completely remove all installed copies of all programme parts from his computers and systems. Any backup copies created shall be returned to the Provider at the Provider’s discretion or irretrievably destroyed by the User. 

(4) After termination of the contract, the provider is obliged to surrender all the user’s data. The obligation to surrender also extends to any backup copies that may have been made. After the data has been handed over, the provider must irrevocably and completely delete the data from his data carriers. The data shall be handed over in a format customary in the market, which shall be determined by the provider.

(5) After the expiry of three months after termination of the contract, the provider is entitled to irrevocably and completely delete the data even without the user’s consent if the user has not requested the surrender of the data within this period. However, the provider must first request the user to accept the data or to declare consent to the deletion, setting a deadline. 

(6) The user remains the sole owner of the data in any case and can therefore demand the return of individual or all data at any time, in particular after termination of the contract, without any right of retention on the part of the provider. 

 11 Industrial property rights/licence/rights of use

(1) Upon commencement of the contract, the user shall receive a non-exclusive, non-transferable and nonsublicensable right, limited in time to the term of this contract, to use the user interface of the platform for display on the screen in the main memory of the end devices used for this purpose in accordance with the contract and to make the resulting reproductions of the user interface to the extent granted in this contract. 

(2) The user may not edit, reproduce, distribute, publicly reproduce by wire or wireless means or make publicly accessible or use in any other way the platform (web application) or, as the case may be, other copyrighted works or designs made available, unless this is expressly permitted in accordance with the provisions of this contract. The user is not entitled to make this platform or the app available to third parties for use against payment or free of charge. The user is therefore expressly not permitted to sublicense the platform.

(3) The platform as contractual software is protected by copyright. The copyright also includes the object code, the documentation, the appearance, structure, and organization of the programme files, the programme name, logos and other forms of representation within the software. The user is not entitled to copy or reproduce the app, as well as the user documentation, in whole or in part, in its original or modified form or in a form mixed with other software or included in other software, unless it is expressly permitted pursuant to Section 69d (1) URG and is absolutely necessary for the intended use of the program, including error correction. 

(4) The user is not permitted to modify the software in any form or to decompile or otherwise reverse engineer the software on which the platform is based or to otherwise attempt to make the source code accessible except in the form permitted under Section 69e URG and for the purposes listed therein. However, this shall only apply on condition that the provider has not made the information necessary for this accessible to the user upon request within a reasonable period of time.

(5) The use of the contractual software is not limited to a certain number of users. The user may make the software accessible and available to an indefinite number of employees and access the software from an indefinite number of end devices. Employees of the User shall include all permanent employees and freelancers who are employed by the User in the performance of a remunerated activity on the User’s instructions. End Devices means any hardware which is the exclusive property of the User. Use by legally independent entities, such as subsidiaries or parent companies, is expressly not permitted.

(6) If the right of use is terminated or expires due to the passage of time or in any other way, the user shall immediately cease using the software including all components. He shall ensure that his employees also cease use and shall be liable for the continued use by third parties commissioned by him, if applicable. The user shall immediately remove the app from all end devices.

(7) If and insofar as a database, databases, a database work or database works are created on the Provider’s servers during the term of this contract, in particular by compiling application data, through activities of the User permitted under this contract, the User shall be entitled to all rights thereto. The user shall remain the owner of the databases or database works even after the end of the contract.

 12 Liability

(1) The provider is liable for intent and gross negligence as well as in the case of personal injury without limitation, but for slight negligence only in the case of breach of material contractual obligations, as well as in the case of impossibility for which the provider is responsible and in the case of default. The liability is limited to the damage typical for the contract, the occurrence of which the provider had to expect at the time of conclusion of the contract based on the circumstances known at that time. In addition, the provider shall be liable without limitation for damages for which mandatory statutory provisions, such as the Product Liability Act, provide for liability. 

(2) The Provider shall only be liable for loss of data in accordance with the above paragraphs and only if such loss could not have been avoided by reasonable data backup measures on the part of the User. 

(3) The limitations of liability shall also apply mutatis mutandis to the Provider’s vicarious agents. 

(4) There is no further liability on the part of the provider; in particular, the provider is not liable for data provided by the user unless the provider makes this data its own by passing it on. 

 13 Miscellaneous

(1) Contracts between the provider and the user shall be governed by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods. The contract language is exclusively German.

(2) If the user is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes arising from the use of the platform with the provider shall be deemed to be the registered office of the provider. Otherwise, the statutory provisions on the place of jurisdiction shall apply.

(3) Amendments and supplements to this contract must be made at least in text form to be effective. This also applies to the waiver of the text form requirement. Verbal ancillary agreements to this contract do not exist at the time of the conclusion of the contract.

(4) Should individual provisions of these Terms of Use be invalid in whole or in part, this shall not affect the validity of the rest of the Terms of Use. The ineffective points shall be replaced by the statutory provisions, if any.