Terms & Conditions for the Provision of Services to Physicians
ofPersonal MedSystems GmbHWilhelm-Leuschner-Str. 41 60329 Frankfurt am MainGermanyAs of: 18th May 2018
The following terms and conditions apply for the provision of services by Personal MedSystems GmbH (hereinafter referred to as “PMS”) vis-à-vis the patient (hereinafter referred to as the “Client” or “Clients”) of the participating physician or medical service center (hereinafter referred to jointly as the “Physician”) in the relationship between the Physician and PMS:“
1. Area of Application, Conclusion of Contract, Services provided by PMS
1.1 PMS shall provide the contractual services exclusively on the basis of these General Terms & Conditions (hereinafter referred to as “TC”) which, in individual cases, may be supplemented or modified by specific descriptions of services. The Physician’s General Terms & Conditions shall not apply to our contracts, even if PMS does not expressly contradict them. Insofar as the Physician’s General Terms & Conditions are not concordant with the TC below, the Physician is obliged to expressly notify PMS in writing and in good time prior to concluding the contract that he does not accept PMS’s TC. If no such reference is made, then the Physician shall refrain from asserting his conflicting General Terms & Conditions.
1.2 All offers made by PMS are non-binding, unless expressly agreed otherwise in the offer. Conclusions of contract and other agreements only become binding upon the acceptance of PMS’s offer by the Physician after he has signed the contract and once the copy of the contract countersigned by PMS has subsequently been returned. If no such copy of the contract countersigned by PMS is returned, conclusions of contract and other agreements become binding upon the commencement of the service provision owing by PMS.
1.3 PMS operates an integrated, internet-based service platform (hereinafter referred to as the “ISP”), that is, a database enabling 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”).
1.4 In the event of their consent, Clients shall conclude a separate agreement with PMS (hereinafter referred to as the “Service Agreement”) and shall register to the ISP. The terms and conditions of the Service Agreement arise out of the “General Terms & Conditions of Personal MedSystems GmbH”, the currently valid version of which shall be given to the Physician by PMS upon request for his attention.
1.5 PMS is not involved in any legal relationships whatsoever between the Physician and the Client. In particular, no rights or obligations of the Physician arise out of the Service Agreement between PMS and the Client.
1.6 The registration and use of the ISP are free of charge for the Physician.
2.1 Within the framework of the Service Agreement, PMS shall be obliged to set up a user account for the Client (hereinafter referred to as “UA”) on the ISP on which the Client can save and administer his data. Only one UA can be set up for each Client. 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. The prerequisite for this is that the Physician has in turn registered a physician’s account on the ISP.
2.2 The Physician can register via PMS’s website. A contractual relationship is established between the Physician and PMS upon registration. Following his successful registration, PMS shall set up a Physician’s user account (hereinafter referred to as the “Physician’s UA”) for the Physician and shall then, in accordance with the Service Agreement, make accessible the medical data submitted to it by the Client who has consented to this data being forwarded to the Physician.
2.3 The Physician’s registration shall only be complete and effective once the Physician has submitted a copy of his valid Physician ID or appropriate proof valid in the country in which his practice is located (hereinafter referred to jointly as “proof of identity”) to PMS via PMS’s website or if PMS has validated the registering person as physician. Upon the expiry of the validity of the proof of identity or in case that PMS has got notice that the physician has terminated his practice, PMS shall block the Physician’s UA so that none of the Client’s data can be transmitted to the Physician. If the Physician fails to provide a valid renewed proof of identity within a period of three months, all of his settings, data and the Physician’s UA shall be blocked by PMS. In the event of the submission of a valid renewed proof of identity in due time, PMS shall reactivate the Physician’s UA, whereby the original settings and data shall continue to exist.
2.4 By registering to the ISP, the Physician generally consents to offering his services to the Client on the ISP. However, this contract with PMS shall not be deemed as an obligation of the Physician to treat the Client. For this purpose, the Physician may decline his appointment by a Client vis-à-vis PMS on the ISP by means of the platform’s decline function.
3. Data Transmission, Data Protection
3.1 The medical data of the Client (e.g. ECG) shall be made available via the ISP exclusively to the Physician's UA selected by the Client (hereinafter referred to as "Client-Physician Link").
3.2 The ISP provides the Physician with an automatic e-mail notification in case a Client sends a set of data (e.g., ECG reading) to the Physician's UA via the Client-Physician Link. This e-mail contains a link which, if confirmed by the Physician, opens the browser of the terminal device and allows access to the Physician UA protected by the Physician's password. The Physician thereby logs on to the Phyisican UA. The Physician may chose as optional additional service and against consideration to PMS, an integrated server-to-server communication which transmits the data directly from the ISP to the Physician's patient information system.
3.3 By default, the ISP will automatically send an e-mail notification to the Physician only if the Client's set of data (ECG) indicates a "yellow" or "red" result compared to the Client's reference ECG, i.e. data suggesting that a consultation with a doctor is appropriate. The Physician may selects in his Physician UA in which cases he wishes an e-mail notification from the ISP. The physician is equally entitled to disable the automatic e-mail notification by the ISP completely.
3.4 The Physician is not obliged to activate the e-mail link or to view the Client’s data in the Physician’s UA, nor is he obliged to react to data transmitted by PMS either at all or within a certain period of time. Equally, the Physician has no entitlement to the transmission of data vis-à-vis PMS.
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:
4.1 Since PMS provides its services to the Physician free of charge in accordance with these TC, PMS shall be liable without limitation to the Physician in the event of gross culpability and, with regard to liability for defects, in the event of malicious conduct. In the event of gross negligence, however, liability shall be limited to compensation for typically foreseeable damage. Otherwise PMS shall not be liable.
4.2 PMS shall be liable for cases which are impossible from the outset only if the impediment to performance was known to it or if its lack of knowledge arose from gross negligence.
4.3 The period of limitation for claims for damages against PMS shall be one year, starting from the beginning of the statutory limitation period, unless the damage was caused intentionally.
4.4 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.
4.5 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.
4.6 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.
4.7 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.
5. Contract Period, Termination
5.1 Either party may terminate the whole agreement or may execute a termination in relation to one or more Clients at any time to the end of a calendar month with two weeks’ notice. However, the terminating party must immediately notify the Client(s) affected by the termination at least in text form prior to the termination becoming effective.
5.2 The contractual relationship between the Physician and PMS concerning the respective Client shall end automatically as soon as the Service Agreement has ended or as soon as the Client declares that he no longer wishes to make use of the Physician’s care within the ISP.
5.3 For the rest, the contractual parties’ right to terminate for good cause remains unaffected.
5.4 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.
6. Final Provisions
6.1 Subject to deviating provisions in these TC, the Physician 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. However, PMS is permitted to transfer this contract to a company with which it is affiliated (§ 15 of the German Stock Companies Act (AktG)).
6.2 Letters of intent 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.
6.3 The registered office of PMS is the place of performance. 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 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.
6.4 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.
6.5 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.
6.6 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 gap.