Personal MedSystems GmbH
60329 Frankfurt am Main
Stand: 18th May 2018 We, the Personal MedSystems GmbH (hereinafter referred to as “PMS”), offer to consumers goods and services for mobile health via our online shop or the App Store of the respective smartphone provider. The following General Terms and Conditions (hereinafter referred to as “TC”) regulate the contractual relationship between the client and PMS for both ordering goods and the provision of services to clients. If you wish to receive goods and services from us, e.g. as part of a combined product package or subscription, please read both sections thoroughly! PMS provides its services exclusively in accordance with the following terms and conditions.
1. Area of Application
We shall provide our contractual services exclusively on the basis of these TC, which in individual cases, may be supplemented or modified by product-specific price lists, descriptions of services or additional contractual documents.
2. Offer by PMS
2.1 PMS sells ECG-devices and services for smartphones and tablet-PCs including accessories via its website „www.cardiosecur.com“ (hereinafter referred to as “Website”). In addition PMS provides its applications free of charge in the app store of the respective smartphone and tablet-PC provider. 2.2 PMS operates an integrated, internet-based service platform (hereinafter referred to as the “ISP”), that is, a database that enables a physician to view, download, save and print out (hereinafter referred to jointly as “make accessible”) the client’s medical data (hereinafter referred to as “medical data”). 2.3 PMS enables the client to set up a user account (hereinafter referred to as “UA”) on the ISP on which the client can save, view and administer his medical data. PMS shall make the data submitted by the client to the UA accessible only to the registered physician selected by the client vis-à-vis PMS on the ISP (hereinafter referred to as the “physician”). The prerequisite for this is that the physician has in turn registered a physician’s user account (hereinafter referred to as the “physician UA”) on the ISP. 2.4 PMS is not involved in any legal relationships whatsoever between the physician and the client. In particular, any evaluation of the medical data made accessible to the physician and any medical action to be taken by the physician resulting from such an evaluation are not the subject of this agreement, but are subject solely to the legal relationships between the client and his physician. The physician is not obliged, on the basis of this agreement, to view the data in the client’s UA or to react within a certain period of time. PMS is furthermore not obliged to contribute to the materialisation of legal relationships between the client and his physician, nor to influence their content in any way. 2.5 The client may change his chosen physician at any time via the UA. As soon as a selection has been made, PMS shall make the medical data accessible only to the physician newly selected by the client. 2.6 The client is advised that the contractual relationship between the client’s physician and PMS can be terminated at any time to the end of a calendar month with two weeks’ notice. In this case, PMS may no longer make any medical data of the client accessible to the selected physician. The client has the opportunity to select another physician and to notify PMS accordingly. 2.7 The client is also advised that the contractual relationship between the client’s physician and PMS shall end if the physician should fail to renew the proof of identity of his registration as a physician on the ISP within a stipulated time limit. 2.8 PMS shall not assume any liability vis-à-vis the client for the information about physicians registered on the ISP with regard to their person, office, proofs of identity and valid registration being correct or complete. 2.9 The client’s medical data are transmitted to the UA via the client’s tablet-computer or smartphone (regarding the technical requirements for tablet-computers and smartphones and regarding the installation requirements, see the performance specifications of the CardioSecur device) in combination with Internet access and additional software provided by PMS. The software required must be downloaded by the client from PMS’s website or the App Store of the respective smartphone provider. PMS shall not assume any responsibility for the correct installation of the software on the client’s end device and for compliance with the installation requirements by the client. For the rest, the performance specifications of the CardioSecur device and the installation requirements mentioned therein for the software to be downloaded by the client shall apply. 2.10 Insofar as third parties other than the physician should gain access to the UA and the data contained therein, the effective consent of the client vis-à-vis PMS is required for this. In regards to the health insurance provider of the client, the client consents, subject to the contractual agreement in place between the client and his health insurance provider, that the health insurance provider shall be enabled to view the client’s UA and the data contained therein. 2.11 PMS shall guarantee a 99% annual average availability of its web server of the ISP. This excludes periods of time in which the web server is not available owing to technical or other problems outside PMS’s sphere of influence (force majeure, fault of third parties, etc.) and maintenance work announced by PMS.
3. Conclusion of Contract
3.1 Offers made by PMS are non-binding. By ordering in the PMS webshop, registering to the ISP via PMS’s website or the PMS app software, the client submits a binding offer to PMS to conclude a contract with him. First of all, the client receives a confirmation of the receipt of his order / registration by e-mail to the e-mail address he has provided (hereinafter referred to as “order confirmation”). However, a contract is only concluded when PMS sends the acknowledgement of order to the client by e-mail, when PMS performs the unconditional delivery of the ordered goods or when PMS starts to provide the service. 3.2 By submitting his binding offer to PMS the client confirms that he has full capacity to contract and that, in particular, he is of full age. 3.3 The client is obliged to enter the personal data required to register a UA on the ISP in full, accurately and truthfully. If any master data (e.g. address in the event of a move) required in the registration of the client onto the ISP or payment data change during the term of existing contracts, the client is obliged to notify PMS of this promptly by changing the data online in his UA under his user profile himself. 3.4 When ordering via the PMS online shop, the ordering process involves a total of four (4) steps. In the first step, the client selects the desired goods. In the second step, he enters his customer details, including invoice address and any deviating delivery address. In the third step, the client chooses how he wishes to pay. In the final step, the client has the opportunity to check all of the entered details once again (e.g. name, address, method of payment, items ordered) and to correct them, where appropriate, before sending PMS his order by clicking on “purchase”. 3.5 We shall save the wording of the contract of the client’s order. The client can print out the order he is placing with us prior to sending it by clicking “Print” in the browser menu. We will also send the client an order confirmation or an acknowledgement of order with all of the order data to the e-mail address specified by the client. 3.6 Illustrations and details of dimensions, weights and details of performance shall be deemed to be approximations. They are not binding unless they have expressly been described as binding. We retain the rights of title and the copyrights in respect of drawings and other documents. These objects may not be made accessible to third parties.
4. Obligations of the Client
4.1 The client can place orders with us only with prior registration of a user account (hereinafter referred to as “UA”). 4.2 The client is obliged to enter the personal data required to place his order and to register with our online shop / the ISP in full, accurately and truthfully. If any master data (e.g. address in the event of a move) required for the registration with our online shop or as payment data change during the term of existing contracts, the client is obliged to notify us of this promptly by changing the data online himself. 4.3 The client shall create all conditions within his sphere that are necessary for the correct provision of our services. 4.4 The client undertakes to make only legitimate use of our online shop , website, our apps and the ISP (hereinafter referred to as “our services”). He assures that, in the context of the use he shall not retrieve or disseminate any criminally relevant content nor breach any other rights of third parties (in particular industrial property rights and competition rights) or any other applicable statutory provisions. It is particularly forbidden to disseminate content that may be liable to corrupt minors, or child pornographic/pornographic, extremist or racist content, virus attacks, chain letters or to send masses of e-mails with identical content without the respective recipient’s consent (so-called spamming). It is also forbidden to misuse our services for attacking the safety precautions of a third-party network, host or account (cracking, hacking and denial of service attacks). The aforementioned acts entitle us to execute immediate extraordinary termination of the contract without having to state the reasons and to block the client’s access to our services. 4.5 The client shall release us from any claims asserted by third parties due to the unlawful use of our services by the client. The client shall notify us immediately of any utilisation by third parties due to the unlawful use of our services. 4.6 The client declares that if he intentionally or unintentionally, knowingly or unknowingly enables third parties to use his access or his login name, he shall be fully responsible for all online acts undertaken by these persons. The client is liable for any such occurring misuse and shall bear all costs incurred by the unauthorised use. 4.7 The client shall keep his connection code (login name, password, possibly PINs and REALM) secret and shall ensure its proper use. We point out that saving passwords, etc. on the tablet-computer, smartphone or tablet generates a risk of misuse by third parties. If there are fears that third parties have gained knowledge of the password, etc., without authorisation, then the client is obliged to notify us immediately and to have the respective data changed or, if possible, change them himself. The client shall bear the blocking costs or the costs of changing the connection code insofar as he is responsible for the necessity to undertake the blocking or changes. 4.8 Although we regularly back up data, we cannot guarantee that all of the client’s data will be backed up. The client takes note of this and shall ensure that his data is backed up on a regular basis. We shall assume no liability for the loss of the client’s entries and data. 4.9 If we become aware of any illicit act by the client or if we are informed of a supposedly illicit act by third parties, we shall forward the personal data to the law enforcement and regulatory authorities within the framework of statutory provisions. If, based on statutory provisions, we should be required beforehand to check the legitimacy of the transmission or the contested act, we shall comply with this request. 4.10 If third-party misuse of the client’s data is suspected, the client shall notify PMS immediately by telephone. Crosschecking the client’s personal data performs proof of the identity of the client via the telephone. As soon as PMS becomes aware of the unauthorised use, it will block the client’s UA. PMS reserves the right to then immediately change the client’s personal connection code (user name, password, etc.) and to send it to the client by e-mail. 4.11 If the client culpably breaches his contractual obligations, then we are entitled to block the login name. In the event of severe breaches, we retain the right to execute the extraordinary termination of the client’s registration to our services.
5. Right to Revoke
If the contract with PMS is concluded using only means of distance communication, that is, online, by e-mail, telephone, fax or letter post, the client has a right of withdrawal in accordance with the following provisions, provided that the client is a consumer within the meaning of § 13 of the German Civil Code (BGB), that is, that he is a natural person and the transaction cannot be assigned to his commercial activities or his activities as a self-employed person:a) Revocation Instructions (purchase of single products / one-off purchase)Right to Revoke You can revoke your declaration to conclude a contract within 14 days without indicating any reasons. The time limit (revocation period) is 14 days from the day, that you or a third party authorized by you, who is not the carrier, took the goods into possession. To exercise your right to revoke you must inform Personal MedSystems GmbH, Customer Support, Wilhelm-Leuschner-Str. 41, 60329 Frankfurt am Main, Germany, email: email@example.com, fax: +49 (0) 69/90720130, by means of a clear statement (e.g. in a letter, fax or email) formulating your decision to revoke this contract. You may use the attached revocation template, which, however, is not compulsory. The revocation period shall be met if you expedite the revocation notice before the revocation period terminates. Consequences of Revocation In the event of an effective revocation, we shall reimburse any payments that we received from you, including shipping costs (with the exception of additional cost incurred by you in choosing a shipping method different from our favourable standard shipping method) immediately and at the latest 14 days from the day on which we received your revocation notice for this contract. For this reimbursement we resort to the same payment method that you chose when placing your order, unless a different payment method was expressly agreed between us. On no account will you be charged fees for the reimbursement. In the event of an effective revocation, we shall reimburse any payments that we received from you, including shipping costs (with the exception of additional cost incurred by you in choosing a shipping method different from our favourable standard shipping method) immediately and at the latest 14 days from the day on which we received your revocation notice for this contract. For this reimbursement we resort to the same payment method that you chose when placing your order, unless a different payment method was expressly agreed between us. On no account will you be charged fees for the reimbursement. You are obliged to return the goods immediately and at the latest within 14 days from the day on which we received your revocation of this contract. The revocation period shall be met if you expedite the goods before the revocation period of 14 days terminates. You shall bear the imminent cost of returning the goods. You will have to compensate us for any deterioration of the goods, unless the deterioration results only from an examination of the goods such as it could also have been performed in a store and is not caused by your undue handling of the goods. b) Revocation Instructions (subscription model)Right to Revoke You can revoke your declaration to conclude a contract within 14 days without indicating any reasons. The time limit (revocation period) is 14 days from the day, that you or a third party authorized by you, who is not the carrier, took the goods into possession the first time. To exercise your right to revoke you must inform Personal MedSystems GmbH, Customer Support, Wilhelm-Leuschner-Straße 41 60329 Frankfurt am Main, Germany, email: firstname.lastname@example.org, fax: +49 (0) 69/90720130, by means of a clear statement (e.g. in a letter, fax or email) formulating your decision to revoke this contract. You may use the attached revocation template, which, however, is not compulsory. The revocation period shall be met if you expedite the revocation notice before the revocation period terminates. Consequences of Revocation In the event of an effective revocation, we shall reimburse any payments that we received from you, including shipping costs (with the exception of additional cost incurred by you in choosing a shipping method different from our favourable standard shipping method) immediately and at the latest 14 days from the day on which we received your revocation notice for this contract. For this reimbursement we resort to the same payment method that you chose when placing your order, unless a different payment method was expressly agreed between us. On no account will you be charged fees for the reimbursement. We are entitled to refuse reimbursement until we receive the goods or until you have provided us with proof that you returned the goods, depending on which is the earlier point in time. You are obliged to return the goods immediately and at the latest within 14 days from the day on which we received your revocation of this contract. The revocation period shall be met if you expedite the goods before the revocation period of 14 days terminates. You shall bear the imminent cost of returning the goods. You will have to compensate us for any deterioration of the goods, unless the deterioration results only from an examination of the goods such as it could also have been performed in a store and is not caused by your undue handling of the goods.
1. Liability and Defects1.1 If the object of the sale is deficient, statutory provisions shall apply. These claims by the client cannot be assigned. 1.2 If supplementary performance is executed by way of a replacement delivery, the client is obliged to return the originally delivered goods to us within 30 days at our expense. The defective goods shall be returned in accordance with statutory provisions. We reserve the right to assert compensation for damages under legally defined conditions. 1.3 The period of limitation is twenty-four months, starting from the delivery.
2. Reservation of Proprietary RightsThe goods delivered by PMS shall remain PMS’s property until they have been honoured in full.
1. Obligations of the Client, Security Regulations, Duties of Care1.1 The client shall create all conditions within his sphere that are necessary for the correct provision of the services by PMS. In particular, the client shall independently and at his own expense ensure his access to the Internet and that he has the necessary technical infrastructure (hardware, software with TCP/IP protocol, browser, modem, telecommunications, and so on). The client shall bear the risk of the loss of data during transmission. The client alone is responsible for the equipment he uses (hardware and software) and for its suitability for data transmission with PMS. 1.2 It is not permitted to use the UA to save other data than that transmitted by PMS’s software. 1.3 The servers applied or used by PMS are secured by firewalls, in compliance with the state of the art. The client is expressly advised by PMS that, according to the current state of the art, security cannot be comprehensively guaranteed when transmitting data in open networks such as the Internet. The client is aware that third parties may possibly be able to view his data at any time without authority, may interfere with network security and can control communication. For this reason, the client shall take responsibility for the security of the data transmitted to PMS by him via the Internet; this is the subject of the contract between the client and his respective telecommunication services provider or internet service provider. 1.4 The data stored on the server applied or used by PMS are secured by an appropriate state-of-the-art back-up system. However, PMS cannot guarantee that all of the client’s data will be backed up. The client takes note of this. PMS shall assume no liability for the loss of the client’s entries and data. 1.5 In addition, if the client breaches these TC to a more than immaterial extent, PMS is entitled to block the client’s UA. This is particularly the case
- when there is reasonable doubt as to the correctness or completeness of the client’s registration data or as to the active user’s authorisation and the client, upon the request of PMS, has not immediately dispelled the doubts at his own expense by presenting suitable supporting documents,
- if there exists a reasonable suspicion that the security provisions and duties of care have been breached.
2. Contract Period, Termination2.1 If not agreed differently the contract shall be valid for a minimum term of 1 month. If either party does not terminate the contract one month before the expiration of the term at the latest, the contract is extended for an additional month. 2.2 If the client (or, where appropriate, his health insurance company) defaults on the payment of a not inconsiderable part of the remuneration, then PMS can terminate the contractual relationship without observing a notice period. PMS reserves the right to assert claims for damages. The user reserves the right to prove that less damage occurred than that for which a claim was asserted. 2.3 For the rest, the contractual parties’ right to terminate for cause remains unaffected. 2.4 Unless expressly agreed otherwise, all terminations must be made in writing (or in text form), whereby the signed declaration of termination must be submitted by fax or by e-mail (as a scanned document, e.g. PDF) to abide by text form.
1. Prices, Shipping, Conditions of Payment, Blocking
1.1 All prices owed by the client are payable in EUROS. Unless expressly specified otherwise, all prices are deemed to be final prices including statutory value-added tax, in so far as it applies. 1.2 Unless expressly agreed otherwise and with the exception of one-off orders, the amounts due are generally invoiced on a monthly basis and are payable upon the receipt of the invoice by the client. Regularly recurring amounts due for payment on a monthly basis are each payable in advance. 1.3 Regularly recurring amounts due for payment by the client on a monthly basis can be executed by direct debit (direct debiting scheme). The direct debit can only be authorised online via the electronic ordering process. The following information is required for direct debit authorisation: Billing account,
Surname and first name of the account holder,
Account number and bank code, as well as the institute at which the account is kept
Place and date 1.4 Other payment options that may be offered to the client arise from the respective ordering process. 1.5 Insofar as, on the basis of a separate contractual agreement, the client’s health insurance company shall assume part or all of the payments to PMS, this will be indicated in the respective order process. The health insurance company can, as the case may be and depending on the agreement in place, purchase vouchers from PMS, which it will give to the client. The vouchers contain the client’s name, his customer number with his health insurance company, the voucher code, the validity period of the vouchers, as well as the services provided by PMS that the client can utilise with the respective voucher. When utilising the services provided by PMS, the client can enter the voucher code; the amount payable by the client shall then be reduced by the share of the costs assumed by the health insurance company (potentially up to 100%). The vouchers are non-transferrable and are linked lastingly to the client’s UA and the data entered there (name and customer number).
By utilizing a voucher the client consents, subject to the contractual agreement in place between the client and his health insurance provider, that the health insurance provider shall be enabled to view the client’s UA and the data contained therein. 1.6 In individual cases, PMS reserves the right to exclude methods of payment. In the event that a payment fails or is not possible, PMS is entitled to block the UA on the ISP and any services to be provided under the agreement for the client. 1.7 In the event of a default in payment, PMS can request default interest at the statutory rate. The client shall bear any costs, in particular fees, for failed payments for which the client is responsible. PMS is entitled to an allowance of 5.00 EUROS per month for processing and monitoring for each month or part thereof during which a delay in payment occurs, as well as for failed payments for which the client is responsible. The client is entitled to provide evidence that the damage did not occur in the first place or that a much lower amount was incurred. PMS reserves the right to claim for damage caused by delay beyond that. 1.8 In the event of a default in payment, PMS is additionally entitled to block the ISP for the client. The client may only be blocked from using the ISP for the duration of the continuance of the reason for the blocking. The block shall not release the client from the obligation to pay the stipulated prices. The block shall be reversed or shall remain undone if well-founded objections are raised against the invoice or an extension agreement has been made. 1.9 The client’s obligation to pay also exists for invoice amounts resulting from the authorised or unauthorised use of the ISP / the UA by third parties, insofar as the client is responsible for this. The client shall be responsible for any use he facilitated or approved in a way attributable to him. 1.10 The client can only offset undisputed or final and conclusive counterclaims against PMS’s claims. The client may only exercise a right of retention if his counterclaim is based on the same contractual relationship. 1.11 The aforementioned provisions of this contract item, which entitle PMS to block UA on the ISP for the client or to withhold performance, apply accordingly for the case that the client’s health insurance company has assumed his obligations to pay vis-à-vis PMS and does not comply with these obligations.
The following provisions shall apply to PMS’s liability as well as to its liability for its employees, vicarious agents and executing aides – for whatever legal reasons: 2.1 Liability shall only be assumed for damage insofar as it was based on a premeditated act, gross negligence or the culpable violation of a material contractual obligation. Material contractual obligations in this sense are obligations that protect the legal positions of the client that are material to the contract and that have to be granted to the client under the contract in terms of subject matter and purpose; material contractual obligations are also those whose fulfilment is a prerequisite for enabling the proper fulfilment of the contract in the first place and in which the client regularly trusts and may normally trust. If a material contractual obligation is violated, liability is restricted to the foreseeable damage. 2.2 The liability limitations stated above shall not apply in the event of the loss of life, physical injury and damage to health, for a defect after assumption of a guarantee for the quality of the product, or for maliciously concealed defects. Liability under the Product Liability Act (Produkthaftungsgesetz) shall remain unaffected. 2.3 PMS shall only be responsible for third-party content on its website and on the ISP a) if PMS is aware of the unlawful acts or the information and, in the event of claims for damages, is also aware of the facts or circumstances from which the unlawful act or the information became apparent and b) if PMS did not take prompt action to remove the information or to block access to it the moment PMS became aware of it. 2.4 PMS expressly dissociates itself from the content of all sites to which direct or indirect references (so-called “links”) are made from PMS’s website and their offerings; PMS shall assume no responsibility or liability whatsoever for such content. The providers of the respective sites are responsible for the content of these sites. The same applies to all content of sites portrayed in so-called “frames” below a navigation bar within PMS’s website and its offerings. 2.5 If damage claims are raised, then they must be asserted by way of an action within 3 months of their written rejection by PMS. Any later assertion shall be ruled out unless independent proceedings for the taking of evidence have been initiated within the time limit.
3. Data Protection
4. Final Provisions
4.1 Subject to deviating provisions in these TC, the client may not transfer any rights granted under this contract or the contract as a whole to third parties unless PMS grants its express written consent to this. PMS will grant its consent if the client has reasonable interests that outweigh the interests of PMS that are worth protecting. PMS is permitted to transfer this contract to a company with which PMS is affiliated (§ 15 of the German Stock Companies Act (AktG)). 4.2 Declarations of will may be given by either contractual party in electronic form and shall thus be deemed as having been given in writing, provided there is no statutory requirement of the written form or the present TC exclude the electronic form. 4.3 This contract shall be governed exclusively by German law. Application of the “Uniform Law on the International Sale of Goods” and the “Uniform Law on the Formation of Contracts for the International Sale of Goods” and the “United Nations Convention on Contracts of International Sale of Goods” is ruled out. This choice of law shall only apply to a consumer if no mandatory statutory provisions of the country in which he has his place of residence or habitual place of residence are restricted. 4.4 The respective registered office of PMS is the place of performance. Insofar as the contractual partner is a business person within the meaning of the German Commercial Code (Handelsgesetzbuch), a corporate body under public law or special fund under public law, the exclusive jurisdictional venue for all disputes arising directly or indirectly from the contractual relationship (including legal proceedings involving cheques, bills of exchange and documents) is agreed to be the respective registered office of PMS. This applies also for judicial reminder procedures as well as for persons with no general jurisdictional venue in Germany, as well as for persons who have changed their place of residence or habitual place of residence to abroad after the conclusion of the agreement or whose place of residence or habitual place of residence is unknown at the time of the commencement of an action. PMS is also entitled to institute litigation at the statutory jurisdictional venue. 4.5 Any verbal ancillary agreements are invalid. Any amendments and additions to this agreement, including this text form clause, shall be marked as such and shall require the text form to take effect. Verbal subsidiary agreements shall only apply if they have been confirmed in writing or in text form. 4.6 If any provisions of these TC shall be or become ineffective or inexecutable, then this shall not affect the validity of the remaining provisions of these TC or the contract with PMS. The same applies as soon as it should transpire that these TC contain a regulatory gap.